Petition for Writ of Certiorari — Heckler v. Kuehner

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wee - Supreme Court le)

PIL pe os

MAR 27 jo94

ALEXAN

83-1593

No.

L. STEVAs,

LERK

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

VU.

FRANK KUEHNER, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REx E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

WILLIAM KANTER

NICHOLAS S. ZEPPOS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

*y

4 Bi tis :

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~ BEST AVAILABLE COPY

QUESTION PRESENTED

Whether, in the absence of exhaustion of administra-

tive remedies, the district court had jurisdiction under

42 U.S.C. (Supp. V) 405(g), 28 U.S.C. (Supp. V) 1331,

or 28 U.S.C. 1861 over this action challenging the

standards and procedures applied by the Secretary of

Health and Human Services and state officials to deter-

mine whether an individual continues to be eligible for

disability benefits under Title II or Title XVI of the So-

cial Security Act.

(1)

II

PARTIES TO THE PROCEEDING

The petitioners are Margaret M. Heckler, Secretary

of Health and Human Services; Martha A. McSteen,

Acting Commissioner of Social Security; Barry Stern,

Secretary of the Pennsylvania Department of Labor

and Industry; and John Delpaine, Director of the

Pennsylvania Disability Determination Bureau.

The named respondents are Frank Kuehner, Dorothy

Burayak, Richard Burns, Alice Hetherington, Frank

Jennings, Jr., Philip Fisher, Clinton Royal, Solomon

Katz, Raymond Staniewicz, James N. McKeown, James

Loughlin, Margaret Douglas, Lawrence Cook, Steven

Sverdlow, Elaine Fleigelman, and Riva Yanovskaya.

The named respondents are representatives of a class

consisting of “all Pennsylvania Social Security Disabili-

ty Insurance and Supplemental Security Income dis-

ability beneficiaries whose benefits have been termi-

nated or are threatened with termination and who have

presented claims for continued disability” (C.A.

App. 40).

Be ea Be oo

TABLE OF CONTENTS

Page

Opinions below ...........csccccesceecevceces 1

I iiss kid oik's 0 gd oie dee 20s n0.0 6+ 2

Statutory and regulatory provisions involved ... 2

Statement:

A. The statutory and regulatory framework... «= 2

B. The proceedings in this case ............. 5

Reasons for granting the petition.............. 11

ee tL ee RV Wiges 6 4es0s ese rucenes 19

DP GE OAS cea ea dices vcgsnereeeceyes la

PINE Aer ch bc cr cccrcccssvesnsrecceccens 35a

nT TTT LOL 37a

2 | a ee. ee ne 39a

0) en ee eee 46a

TABLE OF AUTHORITIES

Cases:

Bob Jones University v. United States, No.

8-13 (May 24, 1983) ........cceevcesvens 13

City of New York v. Heckler, Civ. No.

CV-83-0457 (E.D.N.Y. Jan. 1, 1984), ap-

peal pending, No. 84-6037 (2d Cir.) ...... 11

Doe v. Heckler, Civ. No. M-83-2218 (D. Md.

Dec. 13, 1983), appeal pending, No.

8 SO a Re te eee eee 11

Ellis v. Blum, 648 F.2d 68 .............2.. 17

Goldberg v. Kelly, 397 U.S. 254 .......... 4

Graham v. Heckler, 573 F. Supp. 1573 .... 11

Haig v. Agee, 453 U.S. 280..........--4.- 13

(III)

Cases—Continued: Page

Heckler v. Day, No. 82-1371 (argued Dec.

i OU i Gibbs dias GUN Concha ee hemline aiare 13

Heckler v. Lopez, No. A-145 (Sept. 9,

I i die 6 elit caida thea ai aia ie aA 16

Heckler v. Lopez, No. 83-6126 (9th Cir.

Feb. 22, 2984), application for stay pend-

ee | BARE ROSAS yr Cae ll

Heckler v. Ringer, No. 82-1772 (argued

FO ee Boa 6s heeds kanke cides cece 11, 12,

17, 19

Hyatt v. Heckler, No. C-C-83-655-17

Cw .onee. Pee 364, 1060 . ok cu: 11

Liberty Alliance of the Blind v. Califano,

gg ft NE LER ee ee ee 9

Lorillard v. Pons, 484 U.S. 575 .......... 13

Mathews v. Eldridge, 424 U.S. 319 ... 3, 8, 18,

16, 17, 18

Mental Health Ass’n v. Heckler, 720 F.2d

Wes prs ids che cree ha iey Geekeleeaes 11

Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Curran, 456 U.S. 358 ........... 15

Schweiker v. McClure, 456 U.S. 188 ...... 18

Smith v. Schweiker, 709 F.2d 777......... 11, 16

Trujillo v. Heckler, Civil Nos. 82-k-1505 &

84-1181 (D. Colo. Dec. 15, 1983), appeal

pending, No. 83-2413 (10th Cir.)......... 11

United States v. Erika, Inc., 456 U.S. 201. 18

Weinberger v. Salfi, 422 U.S. 749..... 8, 9, 10,

11, 13, 15, 16

V

Constitution, statutes, regulations and rule: Page

U.S. Const. Amend. V (Due Process

CON 8 ee i i cc ianaek sé eeonn eens 643 6

Social Security Act, 42 U.S.C. (& Supp. V)

301 et seq.:

Tit. II, 42 U.S.C. (& Supp. V) 401 et

ee TERPEE TEE REESE EEL 2

Be GO nadine wc auNs od svtaece 12

42 U.S.C. 406(b) ......... 14, 15, 46a, 47a

42 U.S.C. (Supp. V) 405(b) ....... 4,14

42 U.S.C. (Supp. V) 405(g)....... passim

r Rin Lee | Es 7, 10, 17,

tb» 18, 46a, 49a

42 U.S.C. (Supp. V) 421(a)..... 3, 18, 49a

42 U.S.C. (Supp. V) 421(c) ...3, 49a, 51a

42 U.S.C. (Supp. V) 421(d) ... 4, 5, 12,

14-15, 49a, 53a

42 U.S.C. (Supp. V) 421(h) ...3, 49a, 58a

42 U.S.C. (& Supp. V) 423(a)(1) ... 2

42 U.S.C: 42RI@GMA) on cn ccccese 2

42 U.S.C. (Supp. V) 425.......... 2

Tit. XVI, 42 U.S.C. (& Supp. V) 1381 et

ECU VEE eRe ETT ee Eee 2

43 TBC. TRIAD. vsecceccevves. 4

42 U.S.C. (Supp. V) 1383(c)(1) .. 4, 54a

42 U.S.C. (Supp. V) 1383(c)(1) .... 14

42 U.S.C. 1883(c)(3).........--- 5, 6, 12

7 gk ioe 6 Ae 18

4B U.S.C. TERROR)... cece cccees 3

42 U.S.C. 1882cfaXSXB).......... 2

VI

Constitution, statutes, regulations Page

and rule—Continued:

Social Security Amendments of 1954, ch.

1206, § 106, 68 Stat. 1079 .............. 12

Social Security Amendmennts of 1956, ch.

ee | a 12

Social Security Amendments of 1972, Pub.

L. No. 92-603, Tit. III, 86 Stat. 1465 et

ce ECC Ee Lee ere 12

Social Security Disability Amendment of

1980, Pub. L. No. 96-265, 94 Stat. 441 et

seq.:

§ 304(d), 94 Stat. 456 .........00.000, 15

§ 304(g), 94 Stat. 456 ........ 000.000, 5

3 & 5 "Seana 15

6007; BE I ees 14, 15

Pub. L. No. 97-455, 96 Stat. 2497 et seq.:

§ 2, 96 Stat. 2498, to be codified at 42

ee SE 45 wes By adn bees 4

§ 4, 96 Stat. 2499, to be codified at 42

A SN oF k Os» PEN WER Ee 4,15

Pub. L. No. 98-118, § 2, 97 Stat. 803 ...... 5

ae Ws Be 8s 5 RGR CREAR Biv inkics 16

28 U.S.C. (Supp. V) 1331..... Rd won 2, 17, 19, 46a

28 U.S.C. (Supp. V) 1881... 2... 0.2. 6, 8, 10

Be UG, GI, FY Tien a bv en coe ova 6, 9, 10

SD Ui, BOE bs chai ies aad 2, 6, 9, 10, 11, 46a

20 C.F.R. (1949, 1954 & 1956):

Section 408. 706(c).........ccccceccees 12

Section 40S. TOME) ......cceccccccvccs 12

Section 408.709(1).............. anne 12

eT

Vil

Constitution, statutes, regulations Page

and rule—Continued:

eee ME SENG), gcse asec esiveeie ses 12

20 C.F.R. (1972):

eS a ee ee 12

aS | ree 12

SS ee eee 12

ES Ee er er ee 12

20 C.F.R.:

Section 404.900(a)(5) ... 2... ee eee eens

Sections 404.907-404.921 ..........665-

Sections 404.944-404.965 ..........568-

Sections 404.967-404.983 .........2566-

Gactinn GOEDEL oc ce cccccccccceseecs

ee. eee ee

aetiets M BUE , 5 oc caarissscctnevess

UI NE BEE gi ccc ccecccceceecsese

Sections 404.1594-404.1595 ............

Gaction 406, 1507 2.0... cccccccsccesens

Section 404. 1615(f) ....... cee eeeceees

eS kee ce

ee | ee

Ranttem BIE ccc ce cence seveseses

Section 416.1836(b) ........e.eeeeeeee

Section 416.1400(a)(5) .......--- ee

ee ee

Sections 416.1429-416.1465............

Sections 416.1467-416.1483 ............

Saetion 416.1461 ......ccccccccccccees

be

we

or

uo

an kf & OP WH WH & onmnwnwwan», & Cr

Fed. R. Civ. P. 12(b)(1) ... 6... eee eee eee 10

VIII

Miscellaneous:

5 Fed. Reg. (1940):

BONS aaOneae SARME ME een 12

In the Supreme Cowt of the Anited States

OCTOBER TERM, 1983

No.

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

Vv.

FRANK KUEHNER, ET AL.

PETITION FOR A WRIT OF CERTIORARI! TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the Secretary of

Health and Human Services, the Commissioner of So-

cial Security, the Secretary of the Pennsylvania De-

partment of Labor and Industry, and the Director of

the Pennsylvania Disability Determination Bureau, pe-

titions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Third Cir-

cuit in this case.

OPINIONS BELCW

The opinion of the court of appeals (App., infra,

la-34a) is reported at 717 &.2d 813. The opinion of the

district court (App., infra, 39a-45a) is reported at 547

F. Supp. 49.

(1)

2

JURISDICTION

The judgment of the court of appeals (App., infra,

35a-36a) was entered on September 19, 1983, and a pe-

tition for rehearing was denied on November 28, 1983

(App., infra, 37a-38a). On February 21, 1984, Justice

Brennan extended the time within which to file a peti-

tion for a writ of certiorari to and including March 27,

1984. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

28 U.S.C. (Supp. V) 1331, 28 U.S.C. 1361, relevant

provisions of the Social Security Act, and 20 C.F.R.

416.903 are reproduced at App., infra, 46a-56a.

STATEMENT

A. The Statutory and Regulatory Framework

Titles II and XVI of the Social Security Act provide

for the payment of disability benefits to a person who,

because of a physical or mental impairment that has

lasted or can be expected to last for a continuous period

of not less than 12 months, is unable to do his previous

work or to “engage in any * * * kind of substantial

gainful work which exists in the national economy.” 42

U.S.C. 423(d)(2)(A), 1382¢c(a)(3)(B). An individual who

is found to be disabled thereafter may continue to re-

ceive benefits only for as long as his status—medical

and otherwise—continues to satisfy the statutory defi-

nition of disability. 42 U.S.C. (& Supp. V) 423(a)(1),

425; 20 C.F.R. 404.1594, 404.1597. Accordingly, Con-

gress has provided for the Secretary, at least once ev-

ery three years, to review the cases of individuals who

previously were found to be disabled under Title II in

3

order to ascertain whether they continue to be eligible

for benefits. 42 U.S.C. (Supp. V) 421(h). The Secretary

has provided for a parallel program of periodic review

under the Title XVI Supplemental Security Income

(SSI) program. When the individual’s case is reviewed,

he bears the burden of showing that he continues to

have a physical or mental impairment of sufficient se-

verity to satisfy the statutory standard of disability.

Mathews v. Eldridge, 424 U.S. 319, 336 (1976).

The initial determination whether a person receiving

benefits is still disabled ordinarily is made by a state

agency, pursuant to regulations, guidelines, and per-

formance standards established by the Secretary. 42

U.S.C. (& Supp. V) 421(a), 1383b(a); 20 C.F.R.

404.1503, 416.903. The state agency first notifies the in-

dividual that his case has been selected for review and

inquires about his current medical condition and the

identity of his treating physician or medical facility. 20

C.F.R. 404.1593, 416.993. If the state agency then

makes a tentative determination that the disability has

ceased, the individual is given an advance written no-

tice and explanation and is informed that he has 10 days

within which to submit any additional information. 20

C.F.R. 404.1594-404.1595, 416.994. After this 10-day

period and the receipt of any further evidence, the

state agency makes its initial determination. See

Mathews v. Eldridge, 424 U.S. at 337-338. Some state

agency determinations in turn are subject to review by

the Social Security Administration (SSA) prior to their

effectuation, in order to ensure the quality and uniform-

ity of state decisions and compliance with governing

procedures. See 42 U.S.C. (Supp. V) 421(c).

4

If an individual receiving disability benefits under Ti-

tle XVI of the Act is dissatisfied with the initial deter-

mination, the next step in the administrative process is

the statutorily mandated opportunity for an evidentiary

hearing before an administrative law judge (ALJ) in

SSA. 42 U.S.C. (Supp. V) 1383(c)(1); 20 C.F.R.

416.1407, 416.1429-416.1465. Because entitlement to

SSI benefits, unlike Title II benefits, is based on need

(42 U.S.C. 1382(a)), the Secretary has implemented

this Court’s decision in Goldberg v. Kelly, 397 U.S. 254

(1970), by providing that the actual payment of benefits

will not be terminated until after the ALJ has rendered

his decision following the hearing. 20 C.F.R.

416.1336(b).

If an individual receiving disability benefits under Ti-

tle II is dissatisfied with the initial determination, he

must request reconsideration of that determination

before obtaining an ALJ hearing. 20 C.F.R.

404.907-404.921. Under amendments to the Act effec-

tive on January 1, 1984, the individual must be afforded

an opportunity for a face-to-face evidentiary hearing at

this reconsideration stage. Pub. L. No. 97-455, § 4, 96

Stat. 2499, to be codified at 42 U.S.C. 405(b)(2). If the

decision on reconsideration is adverse to the claimant,

he then is entitled to an ALJ hearing. 42 U.S.C.

(Supp. V) 421(d), 405(b); 20 C.F.R. 404.944-404.965.

Congress enacted temporary legislation in 1982 permit-

ting the claimant in a Title II disability cessation case

to elect to receive interim benefits pending receipt of

the ALJ’s decision, subject to recoupment if the deter-

mination that his disability ceased is affirmed.}

1 Pub. L. No. 97-455, § 2, 96 Stat. 2498, to be codified at 42

U.S.C. 423(g). The temporary authorization (as briefly extend-

5

If the decision by the ALJ after a hearing is adverse,

the Title II or Title XVI claimant may seek review

by the Appeals Council in SSA. 20 C.F.R.

404.967-404.983, 416.1467-416.1483. In addition, in Sec-

tion 304(g) of the Social Security Disability Amend-

ments of 1980 (94 Stat. 456), Congress directed the Sec-

retary to institute a program for the Appeals Council to

review some ALJ decisions on its own motion, in order

to ensure accuracy and uniformity among ALJ deci-

sions. Only after the Appeals Council has either denied

review of the ALJ’s decision or has granted review and

rendered a decision is the Secretary deemed to have

rendered her “final decision” or “final determination” on

the claim, which is then subject to judicial review in

federal district court pursuant to 42 U.S.C. (Supp. V)

405(g). See 42 U.S.C. (& Supp. V) 421(d), 1883(c)(3); 20

C.F.R. 404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481.

B. The Proceedings In This Case

1. This class action was filed in the United States

District Court for the Eastern District of Pennsylvania

on April 29, 1982 against the Secretary of Health and

Human Services and the Commissioner of Social Securi-

ty, as well as the state officials responsible for adminis-

tering the Social Security disability programs in Penn-

sylvania on the Secretary’s behalf (C.A. App. 4).? The

ed by Pub. L. No. 98-118, § 2, 97 Stat. 803) applies to any case

in which the initial determination that the disability had ceased

was made on or after (or was pending on administrative review

on) the effective date of the Act (January 12, 1983), but before

December 7, 1983. HHS may continue to pay benefits in such

cases through June 1984 or until the ALJ renders his decision,

whichever occurs first.

2“C.A. App.” refers to the Appendix filed in the court of

appeals.

6

plaintiffs alleged in their amended complaint (C.A.

App. 1-29) filed on June 25, 1982 that the standards and

procedures utilized »» the defendants for determining

whether an individual's disability has ceased violate the

Social Security Act and the Due Process Clause of the

Constitution. Specifically, the plaintiffs alleged as such

violations: (1) that the defendants fail to show, as a con-

dition to terminating benefits, that the claimant’s medi-

cal condition has improved; (2) that the defendants fail

to give presumptive effect to the prior determination of

disability when they review a claimant’s continuing eli-

gibility; (3) that the defendants terminate benefits in

the absence of fully developed medical evidence from all

treating medical personnel and without giving appropri-

ate weight to such evidence; and (4) that the defendants

terminate benefits “without observing the sequential

disability evaluation process by considering such factors

as medical equivalence, combination of impairments,

pain, and residual functional capacity” (C.A. App.

25-26; App., infra, 39a-40a). Jurisdiction was alleged to

rest on 42 U.S.C. (Supp. V) 405(g), 42 U.S.C.

1383(c)(3), 28 U.S.C. (Supp. V) 1331, and 28 U.S.C.

1361 insofar as the case was brought against the federal

defendants, and on 28 U.S.C. (Supp. V) 1348 and pend-

ent jurisdiction as against the state defendants (C.A.

App. 8).

The district court certified a class of plaintiffs consist-

ing of all disability beneficiaries under Title II and Title

XVI of the Act in Pennsylvania “whose benefits have

been terminated or are threatened with termination

and who have presented claims for continued disability”

(C.A. App. 40). The complaint alleged that there were

102,676 SSI disability beneficiaries and 158,565 Title II

disability. beneficiaries in Pennsylvania as of January

7

1982 whose cases were (or soon would be) subject to re-

view and who therefore were potential class members

(C.A. App. 5). There was no allegation, however, that

these unnamed class members actually had received an

initial determination that their disabilities had ceased

or that they had exhausted their administrative reme-

dies by seeking reconsideration, an ALJ hearing, and

Appeals Council review. Moreover, none of the named

plaintiffs who are still active members of the class had

exhausted his administrative remedies, and in many in-

stances the named plaintiffs had not even completed the

reconsideration stage.®

2. The district court dismissed the complaint for lack

of subject matter jurisdiction. The court first heid that

jurisdiction did not lie under 42 U.S.C. (Supp. V) 405(g)

3 See C.A. App. 7-22, 14 22, 28, 35, 42, 46, 51, 69, 74, 80, 82,

94, 98, 104, 112, 115. An affidavit of an SSA official, which was

based upon SSA’s search of the individual claimants’ records

and was included in a Supplemental Appendix filed in the court

of appeals (Supp. C.A. App.), confirmed that these named plain-

tiffs had not exhausted their administrative remedies, although

the files of several named plaintiffs could not be located (see

Supp. C.A. App. 6 4.10, 9 416). One of the original named

plaintiffs, Clinton Royal, had exhausted his administrative rem-

edies and had sought judicial review in an individual action un-

der 42 U.S.C. (Supp. V) 405(g) in the United States District

Court for the Eastern District of Pennsylvania (No. 81-4747) be-

fore this class action was filed (C.A. App. 14 4 59). Final judg-

ment in Royal’s individual action was entered in favor of the

Secretary on March 81, 1988, and no appeal was taken from that

judgment. The decision terminating his benefits therefore be-

came final and binding upon him. 42 U.S.C. 405(h). Although

Royal was a named party in the court of appeals in this class ac-

tion as well and therefore is a named respondent before this

Court, he cannot be considered still to be an active member of

the respondent class, much less a suitable class representative.

8

because the plaintiffs had failed to exhaust “their avail-

able and adequate administrative remedies” (App.,

infra, 40a). The court explained that under this Court’s

decision in Weinberger v. Salfi, 422 U.S. 749, 765-777

(1975), the “final decision” requirement is central to the

grant of subject matter jurisdiction under 42 U.S.C.

(Supp. V) 405(g) and that the Secretary must deter-

mine what constitutes a “final decision” for these pur-

poses. Here, the court noted, the Secretary had de-

clined to waive the exhaustion requirement because

respondents’ claims raised both factual and legal issues

for which further administrative review would be ap-

propriate. App., infra, 40a-41a.

The district court also concluded that it could not ex-

cuse exhaustion and find jurisdiction under 42 U.S.C.

(Supp. V) 405(g) on, the theory that the issues respon-

dents sought to raise are “collateral” to their substan-

tive claims for benefits within the meaning of the ex-

ception to the exhaustion requirement recognized in

Mathews v. Eldridge, 424 U.S. at 330-332. In the

court’s view, respondents’ statutory contentions

“consist of a grievance respecting the benefits due” and

are “directed at upsetting the merits of the Secretary’s

determination,” and their constitutional claims are “in-

extricably intertwined” with these statutory conten-

tions (App., infra, 48a).

The district court concluded that other bases of juris-

diction were foreclosed as well. It explained that the

special statutory procedure for judicial review under 42

U.S.C. (Supp. V) 405(g) is “exclusive and cannot be cir-

cumvented by resort to the general jurisdiction of the

district courts” under 28 U.S.C. (Supp. V) 1331 to en-

tertain actions “seeking broad injunctive and declarato-

ry relief” (App., infra, 44a). The “extraordinary” rem-

9

edy of mandamus under 28 U.S.C. 1361 also was not

available, the court concluded, because respondents

“have other ample and available means by which to

have their claims reviewed, such as the administrative

procedures of an Administrative Law Judge hearing

and an Appeals Council review, and such as judicial re-

view pursuant to [42 U.S.C. (Supp. V)] 405(g) with the

benefit of an administrative record” (App., infra,

44a-45a). Finally, the court held that it did not have ju-

risdiction under 28 U.S.C. (Supp. V) 1343 insofar as re-

spondents sought relief against the state defendants,

because those defendants’ actions in administering the

Social Security Act are taken “under color of federal

law as mere agents of the Secretary,” not under color of

state law (App., infra, 45a).

3. The court of appeals reversed the district court’s

dismissal of the case for lack of jurisdiction and re-

manded for further proceedings (App., infra, 1a-34a).

The court held that despite respondents’ conceded fail-

ure to exhaust their administrative remedies, the dis-

trict court had jurisdiction under 42 U.S.C. (Supp. V)

405(g) insofar as the action was brought against the

Secretary and Commissioner of Social Security. Citing

Weinberger v. Salfi, the court was of the view that

“(t]here is no § 405(g) exhaustion requirement for con-

stitutional issues” (App., infra, 8a-9a). Moreover, the

court concluded that immediate judicial review is avail-

able under 42 U.S.C. (Supp. V) 405(g) to consider a

statutory issue, even though the claimant has not ex-

hausted his administrative remedies with respect to his

claim for benefits, if the Secretary has taken a “ ‘final

position’ ” on the particular issue (App., infra, 8a-9a,

quoting Liberty Alliance of the Blind v. Califano, 568

F.2d 333, 345-346 (3d Cir. 1977)).

10

Here, the court of appeals observed, respondents

presented both constitutional and statutory issues with

respect to which the Secretary allegedly had taken

“fixed” or “final” positions (App., infra, 9a). The court

concluded that the latter allegation must be accepted as

true for purposes of a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and that

respondents must be afforded an opportunity to prove

at trial that the Secretary in fact has taken such “fixed”

positions (App., infra, 9a-10a). In addition, the court

held that the district court had mandamus jurisdiction

under 28 U.S.C. 1361 to order class-wide relief against

the federal defendants, notwithstanding the preclusion

of review in 42 U.S.C. 405(h) (App., infra, 11a-12a.)

Finally, the court of appeals found jurisdiction under

28 U.S.C. (Supp. V) 1331 insofar as the action was

brought against the state defendants, even though re-

spondents had alleged such jurisdiction only under 28

U.S.C. (Supp. V) 1348 (App., infra, 5a-7a). The court

acknowledged this Court’s holding in Weinberger v.

Salfi that 42 U.S.C. 405(h) bars the exercise of juris-

diction under 28 U.S.C. (Supp. V) 1331, but it con-

cluded that Salft is “not controlling” here (App., infra,

6a). The court reasoned that 42 U.S.C. 405(h) refers

only to actions “against the United States, the Secre-

tary, or any officer or employee thereof,” and therefore

is not a limitation of jurisdiction over a suit against

state officials in connection with the adjudication of

claims arising under the Social Security Act (App.,

infra, 6a).4

. “Judge Becker issued a separate concurring opinion (App.,

infra, 14a-34a). Judge Becker concluded that jurisdiction over

the action against the state defendants under 28 U.S.C. (Supp.

V) 1331 was barred by 42 U.S.C. 405(h) because they are mere

agents or alter egos of the Secretary in administering the Social

Security disability programs (App., infra, 14a-l6a), but he

found that the district court could exercise mandamus jurisdic-

tion against the state defendants under 28 U.S.C. 1361 (App.,

11

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals is flatly inconsist-

ent with this Court’s decisions in Weinberger v. Salfi,

422 U.S. 749 (1975), and subsequent cases and squarely

conflicts with the Second Circuit’s jurisdictional rulings

in an essentially identical case. Smith v. Schweiker,

709 F.2d 777 (1983). The court of appeals’ wholesale

abandonment of the statutory exhaustion requirement

in this class action involving potentially scores of thou-

sands of individuals whose claims for benefits are still

pending on administrative review threatens substan-

tially to disrupt the orderly administrative and judicial

review of claims for benefits under the massive Social

Security disability programs. See also Heckler v.

Lopez, No. 83-6126 (9th Cir. Feb. 22, 1984), application

for stay pending, No. A-707.5 Review therefore is

plainly warranted.

The Court heard argument on February 27, 1984 in

Heckler v. Ringer, No. 82-1772, which arises under the

infra, 27a-34a). Judge Becker agreed with the majority that the

district court had jurisdiction over the action against the federal

defendants under 42 U.S.C. (Supp. V) 405(g) in the particular

circumstances of this case (App., infra, 16a-27a), despite what

he characterized as the Secretary’s “forceful arguments” that

respondents’ contentions “are inextricably intertwined with the

merits of each disability-benefits termination decision” and thus

are not collateral to their claims for benefits (id. at 22a-23a

(footnote omitted)).

5 See also Mental Health Ass’n of Minnesota v. Heckler, 720

F.2d 965 (8th Cir. 1983); City of New York v. Heckler, Civ. No.

CV-83-0457 (E.D.N.Y. Jan. 1, 1984), appeal pending, No.

84-6037 (2d Cir.); Trujillo v. Heckler, Civil No. 82-k-1505 (D.

Colo. Dec. 15, 1983), appeal pending, Nos. 83-2413 & 84-1181

(10th Cir.); Hyatt v Heckler, No. C-C-83-655-17 (W.D.N.C.

Feb. 14, 1984); Doc v. Heckler, Civ. No. M-83-2218 (D. Md.

Dec. 13, 1983), appeal pending, No. 84-1202 (4th Cir.); Graham

v. Heckler, 573 F. Supp. 1573 (N.D. W. Va. 1983).

12

Medicare title of the Social Security Act but which

presents closely related questions of jurisdiction and

exhaustion of administrative remedies. The Court

therefore may wish to hold the petition in this case and

dispose of it in light of the decision in Ringer. We will

address here several additional matters pertaining to

the disability programs and the decision below that are

not directly raised in Ringer.

1. Immediately after 42 U.S.C. 405 was enacted in

1939, the Social Security Board promulgated regula-

tions making clear that judicial review could be ob-

tained under 42 U.S.C. 405(g) only after the Appeals

Council had either denied review or granted review and

rendered its decision. 5 Fed. Reg. 4169, 4171-4174

(1940) (adopting 20 C.F.R. 403.706(c), 403.708(g),

403.709(/) and 403.710(e)). See Gov’t Reply Br. 5-6,

Heckler v. Ringer, No. 82-1772. Those requirements

remained in effect when Congress established the disa-

bility program under Title II in 1954 and 1956® and the

SSI program under Title XVI in 1972.7 Against the

background of this longstanding administrative imple-

mentation of Section 405, Congress’s explicit specifica-

tion in Title II and Title XVI that judicial review of the

Secretary’s “final decision” or “final determination” on a

claim for disability benefits would be available in the

manner “provided in section 405(g)” (42 U.S.C. 421(d),

1383(c)(3)) constitutes a congressional ratification of the

exhaustion requirement in the then-existing regulations

6 Social Security Amendments of 1954, ch. 1206, § 106, 68

Stat. 1079; Social Security Amendments of 1956, ch. 836, § 103,

70 Stat. 815. See 20 C.F.R. 403.706(c), 403.708(g), 403.709(/)

and 403.710(e) (1954 & 1956).

7 Social Security Amendments of 1972, Pub. L. No. 92-603,

Tit. III, 86 Stat. 1465 et seq. See 20 C.F.R. 404.908, 404.916,

404.940, 404.951 (1972).

Tia aainliaaiaiiniiiinaiiiinies. |

13

and an expression of congressional intent that the same

prerequisite to judicial review apply under the SSI and

Title II disability programs. See Haig v. Agee, 453

U.S. 280, 297-299 (1981); Lorillard v. Pons, 434 U.S.

575, 580-581 (1978).

In addition, from 1975 to the present day, Congress

repeatedly has examined the four-stage process for

administrative review of disability claims (see Gov’t Br.

3-6, 23-31, Heckler v. Day, No. 82-1371 (argued Dec. 5,

1983)) without altering the exhaustion requirements in

the Secretary’s regulations. Bob Jones University v.

United States, No. 81-3 (May 24, 1983), slip op. 25. Sig-

nificantly, moreover, Congress’s intensive concern with

these matters has been concentrated in the years fol-

lowing this Court’s decision in Salfi, which held that a

court may not excuse the exhaustion of administrative

remedies required by the Secretary’s regulations based

on its own finding of futility (422 U.S.C. at 764-767),

and also following this Court’s decision in Mathews v.

Eldridge, 424 U.S. 319 (1976), which reaffirmed the

Salfi holding in the specific context of the termination

of disability benefits and recognized only a narrow ex-

ception to the exhaustion requirement for an “entirely

collateral” issue that otherwise would be effectively

unreviewable and unremediable (424 U.S. at 330-332).

Although Congress has amended the procedures for re-

view of disability claims under Title II and Title XVI in

a number of other respects, it has not chosen to alter

the exhaustion and jurisdictional rules established by

Salfi and Eldridge.

For example, as a result of its continuing review,

Congress extensively revised the disability programs-in

1980 and 1982 to require such measures as: extensive

14

regulation by the Secretary of the States’ processing of

claims for benefits, periodic continuing disability re-

views under Title II, a more complete explanation of an

initial denial of benefits by a state agency,® mandatory

review by SSA of determinations by state agencies, an

opportunity for a face-to-face evidentiary hearing at the

reconsideration stage of Title II disability cessation

cases, temporary authorization for the payment of in-

terim benefits in Title II disability cessation cases

pending the ALJ’s decision, review of some ALJ deci-

sions by the Appeals Council on its own motion to en-

sure adequate and uniform adjudication, and limitations

on the remand of cases pending on judicial review un-

der 42 U.S.C. 405(g).° See pages 2-5, supra. It is sim-

ply inconceivable that Congress intended that the

multi-stage process for the administrative and judicial

review of disability claims that these measures were

designed to strengthen could be circumvented in the

manner countenanced by the court of appeals in this

case. Indeed, the text of the amendments demonstrates

that Congress intended no such depariure.

The statutory revisions in the disability programs

discussed above specifically included amendments to 42

U.S.C. 405(b) and 1383(c)(1), which establish the ALJ

hearing as an essential step in the review of claims for

benefits; an amendment to 42 U.S.C. 405(g), which per-

mits judicial review only of the Secretary’s final deci-

sion after that hearing; and an amendment to 42 U.S.C.

8 See the second sentence of 42 U.S.C. (Supp. VY) 405(b) and

1383(¢)(1).

® 42 U.S.C. (Supp. V) 405(g), as amended by Section 307 of

the Social Security Disability Amendments of 1980, Pub. L. No.

96-265, 94 Stat. 458.

15

421(d), which provides for administrative hearings on

Title II disability claims to be conducted pursuant to 42

U.S.C. 405(b) and for judicial review to be available

pursuant to 42 U.S.C. 405(g).4° Congress’s amendment

of the controlling statutory sections in other respects—

while leaving untouched those portions that on their

face and as construed by this Court require full exhaus-

tion of administrative remedies as a prerequisite to ju-

dicial review under 42 U.S.C. 405(g)—manifests an in-

tent to retain the latter requirements. See, e.g.,

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, 456 U.S. 358, 378-379 (1982).14

2. The particular rationale of the court below for

excusing exhaustion of administrative remedies as a

prerequisite to jurisdiction under 42 U.S.C. (Supp. V)

405(g) warrants only a brief response. The court first

held, citing Weinberger v. Salfi, that “[t]here is no

10 See Sections 304(d), 305 and 307 of the Social Security Dis-

ability Amendments of 1980, Pub. L. Ne. 96-265, 94 Stat. 456,

457 and 458; Pub. L. No. 97-455, § 4, 96 Stat. 2499, to be cadi-

fied at 42 U.S.C. 405(b)(2).

11 Moreover, under the SSI program, an individual’s disabili-

ty benefits are not terminated until after he has had an ALJ

hearing and the ALJ renders a decision that his disability has

ceased. See page 4, supra. All that remains at that point is the

requirement that the claimant seek review by the Appeals

Council prior to filing an action under 42 U.S.C. (Supp. V)

405(g). This would not ordinarily be a time-consuming step.

There is no permanent authorization under Title II for the pay-

ment of interim benefits pending the ALJ’s decision. But Con-

gress in the past has enacted temporary legislation providing

for the payment of such benefits (see page 4, supra), and in

doing so has demonstrated how it believes any problems re-

sulting from delay in exhaustion of administrative remedies

should be addressed. Congress has not authorized a circumven-

tion of these remedies, as the court of appeals has done.

|

§ 405(g) exhaustion requirement for constitutional is-

sues” (App., infra, 8a-9a). But Salfi in fact stands for

the opposite proposition: the Court there explicitly held

that the district court could not dispense with the ex-

haustion requirement on the ground of futility simply

because the plaintiff raised a constitutional challenge to

a provision of the Social Security Act. 422 U.S. at

766-767. Contrary to the apparent view of the court of

appeals (App., infra, 8a), the Court did not retreat

from this holding in Mathews v. Eldridge. The Court in

Eldridge simply permitted interlocutory judicial review

on an issue that was “entirely collateral” to the substan-

tive claim for benefits and that could not be adequately

reviewed and remedied in subsequent proceedings. 424

U.S. at 330-332. By contrast, respondents’ evidentiary

contentions in this case are not even remotely “collater-

al” to their substantive claims for benefits; those con-

tentions can be adequately considered on judicial re-

view of the Secretary’s “final decision” disposing of the

entire claim for benefits; and any error can be ade-

quately remedied by means of a retroactive award of

benefits. See Heckler v. Lopez, No. A-145 (Sept. 9,

1983) (Rehnquist, Circuit Justice), slip op. 9; Smith v.

Schweiker, 709 F.2d 777, '780-781 (2d Cir. 1983).

Equally without merit is the court of appeals’ conclu-

sion that a claimant may obtain interlocutory judicial

review on a statutory issue if the Secretary has taken a

“final position” on that particular issue (App., infra,

8a-9a). The authorization for review of a “final decision”

in 42 U.S.C. (Supp. V) 405(g), like that in 28 U.S.C.

1291, permits review only of a final juagment

terminating the litigation, except in the narrow catego-

ry of otherwise unreviewable “collateral” issues.

17

Mathews v. Eldridge, 424 U.S. at 330-332. See Gov’t

Reply Br. at 3-5, 9-16, Heckler v. Ringer. What is

more, the court of appeals held that respondents’ alle-

gations that the Secretary had taken “fixed” positions

on the issues they sought to litigate must be accepted

as true for purposes of ruling on the Secretary’s motion

to dismiss for lack of jurisdiction (App., infra, 3a-9a,

10a). The court therefore apparently contemplates a

trial on remand not only on the merits of the “issues”

involved, but also on the threshold question of whether

the Secretary harbors “fixed” views on them. This ap-

proach is totally at odds with the statutory exhaustion

requirement. When the Secretary ultimately renders

her “final decision” on a claim for benefits, that decision

necessarily will embody her final position, as applied to

the individual claim, on any issue that plays a role in

her disposition of the claim. Her decision then will be

supported by an administrative record adequate for

purposes of judicial review. Only in that concrete set-

ting may a court review the Secretary’s “position” on a

particular “issue.”

3. The court of appeals also plainly erred in finding

jurisdiction over the action against the state officials

under 28 U.S.C. (Supp. V) 1331, despite the bar in the

third sentence of 42 U.S.C. 405(h) to the exercise of ju-

risdiction under Section 1331 (App., infra, 5a-7a). Al-

though the third sentence of Section 405(h) in terms re-

fers only to actions “against the United States, the

Secretary, or any officer or employee thereof,” a claim-

ant cannot resort to a suit against state officials to cir-

cumvent the manifest congressional purpose to channel

all challenges to decisions denying a claim for benefits

through Section 405(g). See Ellis v. Blum, 643 F.2d

68, 76 (2d Cir. 1981).

18

Certainly the statutory text does not warrant the

recognition of such a substantial loophole. State officials

act as the Secretary’s agents in adjudicating claims for

benefits; they perform these functions under standards

prescribed by the Secretary (42 U.S.C. (Supp. V)

421(a)), and their expenses are paid by federal funds

(42 U.S.C. (& Supp. V) 421(e), 13883b). Compare

Schweiker v. McClure, 456 U.S. 188, 190-191, 196-197

(1982). The Secretary therefore is the real party in in-

terest in any litigation concerning claims for disability

benefits; indeed, the regulations governing the States’

determinations of disability expressly provide that

“(t]he State agency will not be responsible for de-

fending in court any determination made, or any proce-

dure for making determinations, under these regula-

tions” (20 C.F.R. 404.1615(f)). Compare United States

v. Erika, Inc., 456 U.S. 201, 205-206 n.4 (1982). Ac-

cordingly, for purposes of the third sentence of Section

405(h), the responsible state officials stand in the shoes

of the federal “officer[s}” and “employee[s]” who are ex-

pressly mentioned in that sentence.

Moreover, the second sentence of Section 405(h) pro-

vides that “[n]Jo findings of fact or decision of the Secre-

tary shall be reviewed by any * * * tribunal * * * ex-

cept as herein provided”—i.e., except as provided in 42

U.S.C. 405(g). Under the statutory scheme, the find-

ings and decisions of the state agency on disability

claims are those of the Secretary, and in fact it is SSA,

not the state agency, that formally renders the decision

to the claimant after it receives and conducts any neces-

sary review of the state agency’s proposed disposition.

~ See Mathews v. Eldridge, 424 U.S. at 338. Section

™ —7

19

405(h) therefore applies equally to bar suits under 28

U.S.C. (Supp. V) 1331 against state officials.

CONCLUSION

The Court may wish to hold the petition in this case

and dispose of it in light of its decision in Heckler v.

Ringer, No. 82-1772, if that decision sufficiently ad-

dresses the issues presented here. In the alternative,

the petition for a writ of certiorari should be granted.

Respectfully submitted.

REX E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

WILLIAM KANTER

NICHOLAS S. ZEPPOS

Attorneys

MARCH 1984

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

THIRD CIRCUIT

No. 82-1514

FRANK KUEHNER, DOROTHY BURAYAK, RICHARD

BURNS, ALICE HETHERINGTON, FRANK JENNINGS,

JR., PHILIP FISHER, CLINTON ROYAL, SOLOMON KATZ,

RAYMOND STANIEWICZ, JAMES N. MCKEOWN, JAMES

LOUGHLIN, MARGARET DOUGLAS, LAWRENCE COOK,

STEVEN SVERDLOW, ELAINE FLEIGELMAN AND RIVA

YANOVSKAYA, ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED, JAMES MCKEOWN AND

RIVA YANOVSKAYA, ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED, APPELLANTS,

Vv.

RICHARD SCHWEIKER, SECRETARY, U.S.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

JOHN A. SVAHN, COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION, BARRY STERN, SECRETARY, PA.

DEPT. OF LABOR & INDUSTRY, JOHN DELPAINE,

DIRECTOR, PA. DISABILITY DETERMINATION BUREAU.

Argued June 1, 1983.

Decided Sept. 19, 1983.

OPINION OF THE COURT

Before GIBBONS and BECKER, Circuit Judges, and

WEBER, District Judge. *

GIBBONS, Circuit Judge.

*Hon. Gerald J. Weber, United States District Judge for the

Western District of Pennsy!vania, sitting by designation.

2a

The plaintiffs, former recipients of Social Security

disability benefits, appeal from an order dismissing

their class action complaint for lack of subject matter

jurisdiction. The defendants are Richard Schweiker,

Secretary of Health and Human Services, John A.

Svahn, Commissioner, Social Security Administration

(the federal defendants), Barry Stern, Secretary,

Pennsylvania Department of Labor and Industry, and

John Delpaine, Director, Pennsylvania Disability De-

termination Bureau (the state defendants). The defend-

ants administer Titles JI and XV of the Social Security

Act. 42 U.S.C. § 401 et seq. (Supp. V 1981). The Com-

plaint challenges methods employed by the defendants

in determining that disability payments should be ter-

minated. In that process the state defendants partici-

pate on behalf of the Social Security Administration,

and their actions are subject to review by that Adminis-

tration. We hold that the trial court, 547 F.Supp. 49,

erred in dismissing the complaint for lack of jurisdic-

tion, and we reverse.

I

Each of the sixteen named plaintiffs is a former recip-

ient of disability benefits who has been notified that

those benefits have been or are about to be terminated,

and each has presented a claim to a state or federal

agency for continued benefits. The complaint alleges

that, motivated by the goal of reducing disability bene-

fits payments for the fiscal year 1982 and thereafter,

the federal defendants adopted policies, implemented

by the state defendants, which have resulted in high

volume review of continued eligibility. It alleges fur-

ther that the high volume review process has or will

3a

soon affect over 250,000 class members in Pennsylvania

who have previously properly been determined to be el-

igible for such benefits. It alleges, moreover, that the

high volume review process which the defendants have

implemented (1) fails to ascertain whether there has

been any substantial medical improvement in the dis-

abled person’s disabling condition, (2) fails to give any

presumptive effect to the prior disability determina-

tion, (3) results in cessation of disability benefits de-

spite lack of medical evidence in the record justifying

that action, (4) ignores or fails to weigh treating physi-

cian evidence, and (5) ignores vocational factors, the ef-

fects of combined impairments, and the effects of disab-

ling pain. These defects are alleged to be fixed policies

applicable to all disability benefit recipients. The com-

plaint alleges, further, that many of the class members

suffer from mental illness or disabilities which make it

unlikely that they will appreciate the steps which they

may have to take to obtain review of initial termination

decisions, that many others will be subject to medical

risk by the termination of treatment resulting from ter-

mination of medicare benefits, and that most class

members rely on their disability payments for the ne-

cessities of life. These and similar allegations are relied

upon as likely to cause immediate and irreparable

harm. The complaint charges that the high volume re-

view process involving the five deficiencies alleged is il-

legal in several respects. These fixed policies are said to

violate the Social Security Act, as interpreted by this

court, and to deprive class members of benefits to

which they are entitled without due process of law. For

purposes of a Rule 12(b)(1) motion we must assume that

the factual allegations are true.

4a

For relief the plaintiffs seek a declaratory judgment

that defendants are erroneously and illegally terminat-

ing or threatening to terminate class members receipt

of disability benefits by failing:

a. to determine whether substantial medical im-

provement has occurred;

b. to allow presumptive effect to prior determina-

tions of disability;

ce. to develop fully and to accord appropriate

weight to evidence from treating physicians;

and

d. to follow a proper sequential disability evalua-

tion process, including consideration of medical

evidence, combination of impairments, pain,

and residual functional capacity.

Injunctive relief against such illegality is sought as

well.

II

The Social Security Administration does not before

this court contend that the fixed policies alleged in the

complaint are consistent with interpretations of the So-

cial Security Act made by this court and others. Indeed

at oral argument the Justice Department attorney ap-

pearing for the defendants conceded that the Social Se-

curity Administration pursues, with respect to certain

rulings by courts of appeals, a policy of nonacquies-

cence. The Social Security Administration has, for ex-

ample, adopted such a policy with respect to an April

16, 1981 decision of the United States Court of Appeals

for the Ninth Circuit holding that disability benefits

could not be terminated unless it showed that there was

a material improvement in the claimant’s medical condi-

5a

tion. Memorandum of February 23, 1982 From Associ-

ate Commissioner Office of Hearings and Appeals to all

Components of the Social Security Administration. 48a.

The Social Security Administration does contend that

by virtue of 42 U.S.C. § 405(h) (1976) the district court

lacks subject matter jurisdiction to consider its policies

either in a suit against the federal defendants or in a

suit against the state defendants. And, implicitly at

least, the defendants contend that 42 U.S.C. § 405(g)

(1976) controls even with respect to challenges to fixed

agency policies which violate due process.

Ili

The district court held that it lacked subject matter

jurisdiction to entertain the complaint against either

the state or the federal defendants.

A. The State Defendants

The complaint alleges jurisdiction over the state de-

fendants by virtue of 28 U.S.C. § 1343(a)(3) (Supp. V

1981) because of constitutional violations. The court

ruled that because the state defendants were adminis-

tering a federal program they were acting under color

of federal law, and thus that there was no jurisdiction

under that statute. The court’s observation is arguably

correct, but irrelevant. Reading the complaint as charg-

ing that state officers, acting under color of federal law,

deprived the class members of property interests to

which the Social Security Act entitled them, either in

violation of the due process clause or in violation of the

Social Security Act, states a claim arising under the

Constitution or laws of the United States. As the trial

court construed the complaint against the state officers,

therefore, there was jurisdiction to consider it without

6a

regard to jurisdictional amount. 28 U.S.C. § 1331

(Supp. V 1981). Moreover, Weinberger v. Salfi, 422

U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), holding

that 42 U.S.C. § 405(h) eliminates section 1331 jurisdic-

tion over suits against the Social Security Administra-

tion to recover on any claim arising under the Social Se-

curity Act, is not controlling. Section 405(h) refers only

to actions against “the United States, the Secretary, or

any officer or employee thereof.” It cannot be con-

strued as a limitation of state court jurisdiction over

suits against state officers, or as a limitation of the gen-

eral jurisdictional grant in section 1331 except as

specified.

We recognize that the jurisdictional reference in the

complaint, while mentioning section 1331, relied specifi-

cally on 28 U.S.C. § 1343 (Supp. V 1981) for jurisdic-

tion over the state defendants.1 However, the com-

plaint, as construed by the district court, alleges claims

against state officers arising under the Constitution and

laws of the United States, and we are instructed by 28

U.S.C. § 1653 (1976) that “[d]efective allegations of ju-

risdiction may be amended, upon terms, in the trial or

appellate courts.” The Justice Department is appearing

for all defendants, and we can conceive of no prejudice

to the state defendants from looking to the allegations

of the complaint in order to determine subject matter

jurisdiction. See Eilis v. Blum, 643 F.2d 68, 75-76 (2d

Cir.1981) (Section 1331 provides basis for jurisdiction

1 Since the elimination of jurisdictional amount. in 28 U.S.C.

§ 1331 the jurisdictional grant in 28 U.S.C. § 1343 appears to

have little practical utility.

Ta

over state defendants in Social Security Act litigation

even though not pleaded).

Thus we hold that the court erred in hoiding that it

lacked subject matter jurisdiction over the suit against

the state defendants. Whether the complaint states a

claim against them upon which declaratory and injunc-

tive relief may be granted against them in the absence

of the federal defendants is a separate question. Bell v.

Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

It is not a question we need address on this appeal,

however, for as indicated below the federal defendants

were properly joined in the district court.

B. The Federal Defendants

For subject matter jurisdiction as to the federal de-

fendants the complaint relied upon 42 U.S.C. §§ 405(g)

and 1383(c), on 28 U.S.C. § 1361, and on 28 U.S.C.

§ 1331. The district court rejected each basis of juris-

diction. We consider them separately.

42 U.S.C. $§ 405(g) and 1383(c)

Section 405(g) provides for jurisdictional review of

decisions of the Secretary made after a hearing, in a

civil action in a United States District Court. The trial

court held that each named plaintiff and each class

member must finally exhaust all administrative reme-

dies before a complaint on his behalf for judicial review

could be entertained. In.so ruling the court failed to

take into account this court’s decision in Liberty Alli-

ance of the Blind v. Califano, 568 F.2d 333 (3d

Cir.1977). In that case we held that section 405(g)

permitted class actions on behalf of Supplemental Secu-

rity Income recipients whose benefits have been re-

duced or terminated. We wrote:

8a

In order for a district court properly to entertain

an action under § 405(g), two conditions must be

satisfied. First, a claim for benefits must have been

presented to the Secretary. Second, there must

have been a final decision after hearing. The Su-

preme Court has held, however, that only the first

condition is a mandatory requirement. The sec-

ond—the requirement that the claimant exhaust

his administrative remedies—can be waived either

by the Secretary, Mathews v. Diaz, 426 U.S. 67.

76, 96 S.Ct. 1883 [1889] 48 L.Ed.2d 478 (1976), or,

under certain circumstances, by the court on its

own determination, Mathews v. Eldridge, 424 U.S.

319 (96 S.Ct. 893, 47 L.Ed.2d 18] (1976).

568 F.2d at 344. We held that the plaintiffs in Liberty

Alliance had met the first, nonwaivable condition, be-

cause all the claimants were benefit recipients whose

benefits had been reduced or terminated. Jd. That

holding is controlling in this case with respect to the

first, non-waivable condition, for the plaintiffs and the

class they seek to represent are identically situated.

Liberty Alliance also addressed the Social Security

Administration’s contention that the holding in

Mathews v. Eldridge, 424 U.S. 319, 328 [96 S.Ct. 893,

899, 47 L.Ed.2d 18] (1976), was limited to challenges to

agency action on constitutional grounds. We wrote:

[Weinberger v.] Salfi [422 U.S. 749 [95 S.Ct. 2457,

45 L.Ed.2d 522] (1975)] teaches us that if the legal

issue is constitutional, since the administrative

agency cannot decide that issue, no exhaustion is

required. 422 U.S. at 765, 95 S.Ct. 2457.... Where

the legal issue is statutory, however, the agency

does have authority to decide it, subject of course

to judicial review. The test for exhaustion of a stat-

utory issue in an individual case, we believe,

9a

should be whether the Secretary has taken a final

position on that issue. In the class context the test

should be no different.

568 F.2d at 345-46. Thus Liberty Alliance settles two

points. There is no § 405(g) exhaustion requirement for

constitutional issues, and for statutory issues the court

may waive exhaustion if the Secretary has taken a final

position on them.

Here the plaintiffs present both constitutional and

statutory issues. Moreover the complaint alleges, and

at this stage we must accept the allegation as true, that

the challenged policies represent fixed positions of the

Social Security Adminisiration. Thus the complaint fails

squarely within the Liberty Alliance holding.

While the trial court simply ignored Liberty Alli-

ance, the Justice Department brief attempts to distin-

guish it on the ground that with respect to one named

plaintiff, Mrs. Carney, the claim had been exhausted at

the highest administrative level. Appellee’s Brief at 25.

The reference, however, to a single exhausted claim, is

taken entirely out of context. The Liberty Alliance

opinion points te the Secretary’s decision in Mrs. Car-

ney’s case, not as satisfying the exhaustion requirement

for the entire class, but as evidence of the fact that the

Secretary had taken a final position on the legal issue.

Fairly read, the complaint alleges that the Social Secu-

rity Administration’s position on the challenged proce-

dures is final. The government has filed no affidavit to

the contrary. The nonacquiescence memorandum of

February 23, 1982 referred to above suggests rather

strongly that the plaintiffs will be able to prove the alle-

gation. But in any event, for purposes of this

Fed.R.Civ.P. 12(b)(1) ruling the allegation in the com-

10a

plaint controls and puts the case squarely within Liber-

ty Alliance.

Although the Justice Department brief makes the

rather lame attempt to distinguish Liberty Alliance re-

ferred to above, its real thrust is that the Secretary

does not acquiesce in that holding. The Brief urges that

Mathews v. Eldridge permits judicial waiver of exhaus-

tion only with respect te constitutional issues which are

“entirely collateral” to individual claims. Essentially the

same argument was rejected by this court in Liberty

Alliance, and for good reasons. There we noted:

The sensible construction of § 405(g) in Sal/fi,

Eldridge, and Diaz accommodates the sometimes

competing needs of the administrative process for

time to arrive at a mature judgment on often com-

plex legal issues, of the judicial process for avoid-

ance of multiple applications for judicial review,

and of similarly situated benefit applicants for the

avoidance of futile administrative delays in the de-

termination of their benefits.

568 F.2d at 346. Each of the policy considerations ad-

verted to in the quoted passage from Liberty Alliance

is fully applicable here. Indeed, if the allegations of the

instant complaint are proved, the policy arguments in

favor of classwide relief are even stronger, for the

plaintiffs in effect charge that the Social Security Ad-

ministration has for budgetary reasons instructed those

responsible for termination adjudications to disregard

definitive interpretations of the Act made by the

courts.

In any event, while the Secretary may feel free to ex-

press nonacquiescence in Liberty Alliance or any other

construction of the Social Security Act announced by

lla

this court, the rules under which we operate do not af-

ford any such leeway.” This panel is, and the district

court was, bound by Liberty Alliance unless the court

in bane should choose to overrule it. Since Liberty Alli-

ance was followed by Mattern v. Mathews, 582 F.2d

248, 249, 252-53 (8d Cir.1978), cert. denied, 443 U.S.

912, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979), and in Town

Court Nursing Center v. Beal, 586 F.2d 266, 275 (8d

Cir.1978) (in banc), an in banc overruling seems unlike-

ly. The fact that other federal courts have followed the

Liberty Alliance section 405(g) interpretation suggests

a broad consensus. See Wright v. Califano, 587 F.2d

345, 349 (7th Cir.1978); Jones v. Califano, 576 F.2d 12,

19 (2d Cir.1978), Caswell v. Califano, 583 F.2d 9, 13

(1st Cir.1978); Kennedy v. Harris, 87 F.R.D. 372, 375

(S.D.Cal.1980); Adams v. Califano, 474 F.Supp. 974,

982 (D.Md.1979); Fitzgerald v. Schweiker, 538 F.Supp.

992, 997-98 (D.Md.198&2).

Thus we hold that the trial court erred when it disre-

garded the controlling Liberty Alliance precedent and

dismissed the complaint for lack of subject matter

jurisdiction.

28 U.S.C. § 1361

In the district court the plaintiffs also asserted ju-

risdiction under the federal mandamus statute, 28

U.S.C. § 1361 (1976). The trial court, although citing in

another context Judge Friendly’s opinion in Ellis v.

2 Judge Weis has commented perceptively upon the costs re-

sulting from the practice of federal agency nonacquiescence in

decisions of the courts of appeals. See Goodman’s Furniture Co.

v. United States Postal Serv., 561 F.2d 462, 465-66 (3d Cir. 1977)

(Weis, J., concurring).

12a.

Blum, 643 F.2d 68 (2d Cir.1981), summarily rejected

that basis for jurisdiction. In Ellis v. Blum, like this a

challenge to an administrative action by the Social Se-

curity Administration, Judge Friendly carefully ana-

lyzes the scope of district court jurisdiction under 28

U.S.C. § 1361 to afford class-wide relief with respect to

defective procedures. He holds that 42 U.S.C. § 405(h)

does not affect the district court’s jursdiction under sec-

tion 1361. 643 F.2d at 82. We need not repeat here

Judge Friendly’s typically thorough and careful analy-

sis. We only note that the Ellis v. Blum holding was

anticipated in this court by our holding in Mattern v.

Weinberger, 519 F.2d 150, 156-57 (8d Cir.1975), va-

cated and remanded on other grounds, Mathews v.

Mattern, 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812

(1976), that 28 U.S.C. § 1361 affords jurisdiction in a

class action challenging the validity of recoupment pro-

cedures adopted by the Social Security Administration

for the recovery of overpayments.

Thus the trial court erred as well in disregarding the

Mattern v. Weinberger precedent and refusing to enter-

tain the plaintiff’s action under 28 U.S.C. § 1361.

§ 1331

Since we have already identified two separate stat-

utes affording subject matter jurisdiction over plain-

tiffs’ lawsuit against the federal defendants, there is no

need to address the question whether, despite 42

U.S.C. § 405(h), 28 U.S.C. § 1331 provides subject

matter jurisdiction for declaratory and injunctive relief

with respect to procedures as distinguished from collec-

tion of benefits. But see St. Louis University Hospital

». Blue Cross Hospital Services, 5387 F.2d 288, 291-92

13a

(8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50

L.Ed.2d 584 (1976).

IV

Since there was subject matter jurisdiction over the

claim against the state defendants under 28 U.S.C.

§ 1331 and subject matter jurisdiction over the federal

defendants both under 42 U.S.C. § 405(g) and under 28

U.S.C. § 1361, the judgment dismissing the complaint

for lack of subject matter jurisdiction wil! be reversed.

14a

EDWARD R. BECKER, Circuit Judge, concurring.

While I agree that there was subject-matter jurisdic-

tion over the federal and state defendants in this case

and that the judgment dismissing the complaint for lack

of subject-matter jurisdiction must be vacated and the

case remanded for further proceedings, I disagree with

the majority’s approach and reach my conclusion on dif-

ferent grounds. I will consider the issues in the order

set forth by the majority.

I. JURISDICTION OVER THE STATE DEFENDANTS

The majority concludes that subject-matter jurisdic-

tion over the state defendants lies under 28 U.S.C.

§ 1831 (Supp. IV 1980) notwithstanding Weinberger v.

Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522

(1975), in which the Supreme Court read 42 U.S.C.

§ 405(h) (1976)! as eliminating section 1331 jurisdiction

over suits against the Social Security Administration to

recover on any claim arising under the Social Security

Act. Id. at 756-62, 95 S.Ct. at 2462-65. The majority

purports to distinguish Salfi by observing that

[sjection 405(h) refers only to actions against the

United States, the Secretary, or any officer or em-

ployee thereof. It cannot be construed as a limita-

tion of state court jurisdiction over suits against

state officers, or as a limitation of the general juris-

dictional grant in section 1331 except as specified.

Majority op. at Part III.A. Because section 405(h) does

not expressly preclude resort to section 1331 in suits

1 42 U.S.C. § 405(h) (1976) provides, in relevant part: “No ac-

tion against the United States, the Secretary, or any officer or

employee thereof shall be sought under section 1331 or 1346 of

title 28 to recover on any claim arising under this subchapter.”

15a

against state defendants such as the Secretary of the

Pennsylvania Department of Labor and Industry and

the Director of the Pennsylvania Disability Determina-

tion Bureau, the majority concludes that Salfi simply

“is not controlling,” id.

I believe that the majority has read the Supreme

Court’s opinion too narrowly. It.is true, of course, that

section 405(h) does not expressly bar section 1331 juris-

diction over the state defendants, but the majority

glosses over the fact that the state defendants are

merely the alter egos of the federal defendants, who

clearly fall within the ban of section 405(h). As Judge

Friendly observed in Ellis v. Blum, 643 F.2d 68, 76 (2d

Cir.1981), a case cited by the majority:

On its face § 405(h)’s ban on actions “against the

United States, the Secretary, or any officer or em-

ployee thereof” does not apply to a suit against

state officials. However, a forceful argument can

be made that the state officials administering the

disability-benefits program are acting under color

of federal law as mere agents of the Secretary, and

as such are within the ambit of § 405(h). To hold

otherwise arguably would invite applicants for Ti-

tle II benefits to cireumvent §§ 405(g) and (h) by

bringing suit under § 1331 against the state offi-

cials instead of the Secretary, particularly now that

the amount-in-controversy requirement of § 1331

has been eliminated as to all defendants.

I agree with this view and therefore conclude that

plaintiffs cannot invoke section 1331 to gain jurisdiction

over the state defendants.? I will address later, see

2 While the Second Circuit allowed the Ellis plaintiff to pro-

ceed against the state defendants under § 1331, it did so be-

cause of circumstances not present here. The Ellis court had

16a

infra Part III, the basis upon which I do find jurisdic-

tion over the state defendants.

II. JURISDICTION OVER THE FEDERAL DEFEND-

ANTS: 42 U.S.C. § 405(g)

The majority concludes that 42 U.S.C. § 405(g)

(Supp. V 1981)* provides a proper jurisdictional basis

for the claims against the federal defendants despite

the fact that none of the named plaintiffs, nor any of the

class members, exhausted his or her administrative

remedies. The majority bases its decision on Liberty

Alliance of the Blind v. Califano, 568 F.2d 333 (3d

“little doubt that ... the scope of § 405(h) extends to suits in

which claims aganst state officials are merely disguised disputes

with the Secretary of the sort described in $§ 405(g) and (h),”

643 F.2d at 76, but found that plaintiff had alleged “separate

and distinct” claims against the state defendants and that there

thus was “no reason to extend the ban of § 405(h) to preclude

§ 1331 jurisdiction” over those claims, id. These “separate and

distinct” claims alleged that the state defendants had violated,

in bad faith, the procedures authorized by the Secretary; plain-

tiff also sought damages against the state defendants to redress

her emotional distress. Jd.

A review of the complaint filed in the case sub judice does not

reveal an assertion of “separate and distinct” claims against the

federal and state defendants. Accordingly, the rationale of Ellis

does not apply, and § 1331 jurisdiction is not appropriate.

3 Section 405(g) provides, in relevant part:

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 commenced within sixty days af-

ter the mailing to him of notice of such decision or within

such further time as the Secretary may allow.

In addition, 42 U.S.C. § 1383(c)(3) (1976) provides that “[tJhe fi-

nal determination of the Secretary after a hearing under para-

graph (1) [relating to procedures for payment of benefits] shall

be subject to judicial review as provided in section 405(g) of this

title to the same extent as the Secretary’s final determinations

under section 405 of this title.”

17a

Cir.1977), which the majority considers “controlling . ..

precedent,” Majority op. at Part III.B.1. Indeed, the

majority goes so far as to characterize as “lame” the

Secretary's attempt to distinguish Liberty Alliance. Id.

I am far less certain that Liberty Alliance controls,

for there are two arguable distinctions between that

case and the one before us. First, one of the named

plaintiffs in Liberty Alliance had exhausted her claims

at the highest administrative level, thereby complying

with section 405(g)’s mandate that district courts re-

view only “final decision[s] of the Secretary made after

a hearing to which [plaintiff] was a party.” The case

sub judice presents no exhausted claims. Second, the

claim at issue in Liberty Alliance related to the way in

which benefits were to be calculated* and thus was far

more collateral to the award or denial of benefits than

are the claims now being pursued before this Court.

I concede that Liberty Alliance is broadly written; I

also note that Judge Gibbons is the author of that opin-

“ As we explained the question in Liberty Alliance:

At issue ... is the proper interpretation of § 1611(h) of

the Social Security Act Amendment of 1972, Pub.L. No.

92-603, tit. III, § 301, which provides that, in determining

the amount of Supplemental Security Income benefits for

blind persons, there shall be disregarded the greater of ei-

ther the amount that could have been disregarded under

the former state plan or the amount which would be disre-

garded under the relevant provisions of the Supplemental

Security Income program. [Plaintiffs assert] that in addi-

tion to those forms of income specifically directed to be dis-

regarded under the prior Pennsylvania plan, § 1611(h)

mandates that the Secretary disregard income which, be-

cause of the state plan’s assessment of basic, special, and

spousal needs, would have been excluded from the compu-

tation of benefits under the state plan.

568 F.2d at 335-36. The claim, therefore, was purely

mathematical.

18a

ion as well as of the majority opinion here, and I there-

fore will not quarrel with his judgment that Liberty Al-

liance is apposite. I do not, however, agree that Liberty

Alliance is itself dispositive of the case now before us.

Rather, I believe that our finding of subject-matter ju-

risdiction over the federal defendants under 42 U.S.C.

§ 405(g) should be grounded on a restatement of the

cardinal principles governing this area of the law as

those principles may be synthesized from the decisions

of the Supreme Court and this Court, including Liberty

Alliance. I therefore will attempt such a restatement

and, in so doing, will highlight my differences with

Judge Gibbons over the scope of Liberty Alliance.

While our differences may be matters of emphasis, I

believe that they do have some substantive importance.

The foundation of Liberty Alliance, as of other ex-

haustion cases, is the Supreme Court’s opinion in

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976). Eldridge split section 405(g)’s “final

decision” requirement into two components,

only one of which is purely “jurisdictional” in the

sense that it cannot be “waived” by the Secretary

in a particular case. The waivable element is the

requirement that the administrative remedies pre-

scribed by the Secretary be exhausted. The non-

waivable element is the requirement that a claim

for benefits shall have been presented to the Secre-

tary. Absent such a claim there can be no “deci-

sion” of any type. And some decision by the Secre-

tary is clearly required by the statute.

Id. at 328, 96 S.Ct. at 899. We are not concerned here

with the “nonwaivable element” of section 405(g), for

the complaint clearly alleges that all class members

“have presented claims of continuing disability,” Com-

19a

plaint at 9. We therefore need focus only on that as-

pect of Eldridge that discusses the appropriateness of

judicial waiver of the administrative remedies that fol-

low the filing of a claim. :

Plaintiff in Eldridge was a recipient of Social Securi-

ty disability benefits; when notified that his benefits

were to be terminated, Eldridge did not request recon-

sideration of the decision but filed suit against the Sec-

retary, claiming that the due-process clause of the fifth

amendment to the Constitution requires that a recipi-

ent of disability benefits be granted an evidentiary

hearing prior to the termination of those benefits.

The Supreme Court ruled against Eldridge on the

merits but upheld the taking of jurisdiction, recognizing

that “cases may arise where a claimant’s interest in

having a particular issue resolved promptly is so great

that deference to the agency’s judgment is inappropri-

ate.” 424 U.S. at 330, 96 S.Ct. at 900. The Court

deemed Eldridge’s suit to be such a case because

Eldridge had raised a constitutional, rather than a stat-

utory, claim, and because that claim was “entirely col-

lateral to his substantive claim of entitlement.” /d.

Moreover, the Court recognized the hardship that

would befall Eldridge, were it necessary for him to save

his contentions for the post-termination administrative-

review process. Jd. at 331-32, 96 S.Ct. at 900-01.

In the course of its opinion, the Court also articulated

“the core principle that statutorily created finality re-

quirements should, if possible, be construed so as not to

cause crucial collateral claims to be lost and potentially

irreparable injuries to be suffered,” id. at 331 n.11, 96

S.Ct. 900 n.11. This principle is especially critical in

light of the fact that “[iJt is unrealistic to expect that

i lll

20a

the Secretary would consider substantial changes in the

current administrative review system at the behest of a

single aid recipient raising a constitutional challenge in

an adjudicatory context,” 2d. at 330, 96 S.Ct at 900.

The Eldridge approach, therefore, is a pragmatic one,

focusing on the nature and collaterality of the asserted

claim, including the likelihood that the Secretary would

“consider substantial changes in the administrative re-

view system” at the behest of a single claimant, and the

harm that would be caused to the would-be plaintiff by

relegating him to his administrative remedies.

Less than two years later, this Court decided Liberty

Alliance, which addressed Eldridge and its predeces-

sor, Weinberger v. Salfi, supra. We there noted the

differences between unexhausted constitutional claims

(as in Eldridge) and unexhausted statutory claims, 568

F.2d at 345-46, and observed:

Salft teaches us that if the legal issue is constitu-

tional, since the administrative agency cannot de-

cide that issue, no exhaustion is required....

Where the legal issue is statutory, however, the

agency does have authority to decide it, subject of

course to judicial review. The test for exhaustion of

a statutory issue in an individual case, we believe,

should be whether the Secretary has taken a final

position on that issue. In the class context the case

should be no different.

Id. at 346 (citations omitted). The finality of the Secre-

tary’s position in Liberty Alliance was evidenced by

the Department of Health, Education, and Welfare’s

(“HEW’s”) conduct during negotiations with plaintiffs

and by a letter from HEW stating that the Secretary

would not modify his interpretation of the relevant stat-

2la

utory provision except in response to legislative or judi-

cial action. Jd.5

Liberty Alliance and the majority here seem to focus

exclusively on the question whether the Secretary has

taken a fixed and final position on the asserted claim.

As I read Liberty Alliance, however, this Court did

not—and, indeed, could not—read out of the law the

collaterality requirement that played so important a

role in the Supreme Court’s Eldridge opinion. It was

unnecessary to dwell on that issue in Liberty Alliance

because the plaintiffs’ claim in that case, involving the

calculation of benefits, see supra note 4, was clearly

collateral to any substantive award or denial of those

benefits.

I therefore conclude, after reviewing Salfi, Eldridge,

and Liberty Alliance, that there are three basic criteria

that must be met before judicial waiver of section

405(g)’s exhaustion requirement becomes appropriate:

(1) the unexhausted claim must be at least substantially

collateral to the question whether plaintiffs should con-

tinue to receive disability benefits; (2) the Secretary

must have taken a fixed and final position on the unex-

hausted claim, thereby rendering exhaustion futile; and

(3) requiring exhaustion must impose substantial

hardship on, or cause irreparable harm to, the plain-

5 We also noted that the Secretary’s “firm position has been

confirmed in this lawsuit, in which one plaintiff... has fully ex-

hausted all available administrative review.” 568 F.2d at 346

(emphasis added). The majority thus may well be correct in its

assertion that exhaustion by one plaintiff in Liberty Alliance

was only “evidence of the fact that the Secretary has taken a fi-

nal position on the legal issue,” rather than a prerequisite for

satisfying the exhaustion requirement in a class action, Majority

op. at Part ITI.B.1.

tiffs.6 It is only because I believe that each of these

three criteria has been satisfied that I concur in the ma-

jority’s waiver of the exhaustion requirement.

A. Collaterality

The defendants have argued that collaterality is ab-

sent here because plaintiffs’ claims are inextricably in-

tertwined with the merits of each disability-benefits

termination decision.” It is impossible, defendants ar-

® In propounding these three criteria, I have relied on the

discussions in Salfi, Eldridge, and Liberty Alliance of statuto-

ry, rather than constitutional, claims. I read the claims set forth

in plaintiffs’ complaint as primarily statutory; I have significant

doubts about tneir constitutional validity. However, by conclud-

ing that plaintiffs need not exhaust their statutory claims, I de-

cide, a fortiori, that they need not exhaust their constitutional

ones, which, according to Liberty Alliance. are subject to a

lesser exhaustion standard, 568 F.2d at 346.

7 As the Second Circuit recently said in Smith v. Schweiker.

709 F.2d 777, 780-81 (2d Cir. 1983):

Exhaustion ... would frame the issue in a much clearer

fashion than is possible when it is posed as an abstraction.

While the legal issue raised by plaintiffs may seem well-

defined to them, it seems rather unformulated to us. What

is meant by evidence of medical improvement, for exam-

ple, is somewhat ambiguous. If disability status has been

previously determined on the grounds of paralysis from

the neck down, a video tape of the claimant playing foot-

ball might well seem sufficient evidence to terminate bene-

fits. Yet plaintiffs seem at times to be arguing that unless

the claimant’s health has improved, i.e. the paralysis has

disappeared rather than having been initially misdiag-

nosed, a termination of benefits is unlawful however con-

clusive the evidence of no present disability. At other

times they seem to require medical testimony as essential

to termination. It is also not clear why, if the initial disa-

bility determination was based on a finding of a lack of

suitable jobs in the economy, evidence of medical improve-

ment is necessary where a different finding as to the avail-

ability of such jobs based on new evidence is made. We

note this, not to comment on the merits, but to suggest

23a

gue, to isolate questions relating to the medical-im-

provement standard, testimony of treating physicians,

and “sequential” evaluation from the medical and voca-

tional history of each applicant. Moreover, imposition of

a medical-improvement standard might even dictate the

outcome of some cases.®

These are forceful arguments, but the fact remains

that, should plaintiffs prevail on each of their claims in

this case, the Secretary still will be at liberty to termi-

nate all payments upon finding the recipients no longer

disabled. The district court thus would not be ruling on

the merits of the underlying claims for benefits but only

on the procedures by which such determinations ulti-

mately will be made by the state and federal agencies. I

therefore believe that plaintiffs’ claims are substantially

collateral to the question whether plaintiff should con-

tinue to receive disability benefits.

B. Final Position and Futility of Exhaustion

I also believe that the Secretary has taken a fixed

and final position on the questions raised by plaintiffs;

judicial waiver of exhaustion requirements thus will not

cause “premature interference with agency processes”

or deny the agency the chance to “function efficiently,”

Weinberger v. Salfi, supra, 422 U.S. at 765, 95 S.Ct. at

2457. SSA Ruling 81-6 (1981), for example, sets out the

that the claim raised by plaintiffs may seem far stronger,

and certainly more clearly framed, when urged in the con-

text of a concrete case, devcloped in the review process,

with a factual record setting out the reasons for the prior

ruling and subsequent termination, than when posed in the

abstract.

8 But cf. infra note 14 (discussing Kuzmin v. Schweiker, 714

F.2d 1233 (8d Cir.1983), and what evidence a claimant must

present in a disability-benefits terinination proceeding).

24a

standards to be used in continuing-disability investiga-

tions and expressly rejects plaintiffs’ medical-improve-

ments claim: “It will not be necessary to determine

whether or how much the individual’s condition has

medically improved since the prior favorable determi-

nation.” App. at A42. See also Defendant’s Response to

Request for Admissions—First Set, App. at A59 (“Ad-

mit that there is no distinction in the standards of

evaiuating a claim on initial application or continuing

disability review”; “finding of improvement in a claim-

ant’s condition is not required under the Secretary’s

regu.ations”). And the statement of defendant Barry H.

Stern (Secretary of Pennsylvania’s Department of La-

bor and Industry) to the United States Senate’s Fi-

nance Committee on August 18, 1982, reveals that the

Secretary also has taken a fixed position on plaintiffs’

sequential-evaluation claim. Mr. Stern testified:

SSA [Social Security Administration] now discour-

ages the allowance of claims where n impair.nent

is similar in severity, but not specifically de-cribed

in the medical listing.

Compounding this issue is that SSA no longer con-

siders the combined effect of all impairments of the

individual, but rather evaluates each impairment

singularly, resulting in many of the multiply dis-

abled being terminated from the disability rolls.

App. at A50. These and other indications of the Secre-

tary’s views constitute strong evidence that SSA has

taken a fixed and final position on the claims at issue

and that it therefore would be “unrealistic to expect

that the Secretary would consider substantial changes

in the current administrative review system at the be-

25a

hest of a single aid recipient... .” Mathews v. Eldridge.

supra, 424 U.S. at 330, 96 S.Ct. at 900.

Notwithstanding this evidence, however, and in def-

erence to the policies of judicial noninterference and

avoidance of premature review that underlie the ex-

haustion requirement, I would be reluctant to find a

fixed and final position on the part of the Secretary if I

were convinced that the Secretary would yield to a

court decision following full administrative review.

Therefore, what really clinches this case for me is the

Secretary’s posture toward judicial declarations that

displease SSA. In Finnegan v. Matthews, 641 F.2d

1340 (9th Cir.1981), the Court of Appeals for the Ninth

Circuit held that payments to certain recipients of disa-

bility benefits could not be terminated absent proof of

material medical improvement or of commission of clear

and specific error during the prior determination. Fol-

lowing this ruling, Louis B. Hays, Associate Commis-

sioner of SSA’s Office of Hearings and Appeals, sent a

memorandum to, inter alia, all administrative law

judges:

I want to draw your attention to Social Security

Ruling SSR 82-10c in the January 1982 quarterly

Rulings publication, indicating [SSA’s] non-acqui-

escence in the Court’s decision. Under SSA policy,

it is not necessary to show that there has been im-

provement in the claimant’s condition or any error

in the prior State determination for benefits to be

ceased....

Social Security Ruling SSR 82-10c is binding on all

components of SSA including administrative law

judges and the Appeals Council (20 C.F.R.

422.408). SSA’s policy must be followed in cases in-

26a

volving the issue of cessation of disability, includ-

ing cases involving claimants who reside within the

jurisdiction of the United States Court of Appeals

for the Ninth Circuit.

Memorandum from Louis B. Hays to All RCALJs,

ALJICs, and ALJs (Feb. 23, 1982), App. at A43.° It

thus appears that, when the Secretary has taken a final

position on a disputed question, he will continue to ad-

here to, and require compliance with, those views even

after a Court of Appeals has resolved the issue against

him. Under these circumstances, exhaustion of adminis-

trative remedies becomes a mere exercise in futility,

both for the claimants and for the courts. It makes far

more sense to allow the claimants to litigate the case

and, if successful, to obtain a decree enforceable via

contempt proceedings.

C. Substantial Hardship and Irreparable Harm

I further conclude that it would cause great hardship,

and possibly irreparable harm, to require plaintiffs to

exhaust all levels of administrative review before filing

this suit in the courts. What we said in Liberty Alli-

ance still holds: “the plaintiffs here are largely depend-

ent upon public assistance.... An erroneous termina-

tion or substantial reduction of this assistance would

severely burden their subsistence. Requiring each

plaintiff fully to exhaust his administrative remedies,

especially where, as here, such exhaustion would be fu-

tile, would increase this burden.” 568 F.2d at 345; ac-

cord Mattern v. Mathews, 582 F.2d 248, 253 (3d

® Judge Weis had aptly commented upon a similar govern-

ment litigation policy in Goodman’s Furniture v. United States

Postal Serv. , 561 F.2d 462 (8rd Cir.1977) (Weis, J., concurring).

27a

Cir.1978), cert. denied 443 U.S. 912, 99 S.Ct. 3101, 61

L.Ed.2d 876 (1979). I also cannot help but note the

time, effort, and anxiety involved in pursuing a claim

through the administrative levels.'°

Accordingly, I concur in the majority’s judgment that

jurisdiction under section 405(g) lies with respect to the

federal defendants. It does not appear, however, that

that provision may be invoked to assert jurisdiction

over the state defendants. I therefore must consider

whether any other jurisdictional basis exists with re-

spect to those individuals.

Ili. MANDAMUS JURISDICTION: 28 U.S.C. § 1361

Plaintiffs also rely on 28 U.S.C. § 1361 (1976)! as an

additional basis for jurisdiction over the federal defend-

10 Defendants seek to answer the irreparable-harm argument

by focusing on recent amendments to the Social Security Act

granting terminated claimants the option of continuing benefits

until an administrative law judge reviews the state agency’s de-

termination. Pub.L. No. 97-455, 96 Stat. 2497 (1983). If the ALJ

affirms the termination, the continued benefits will be consid-

ered overpayments subject to recoupment at the discretion of

the Secretary.

The new law, however, does not significantly relieve the

hardship to plaintiffs, for it expires in June 1984 and applies

only to termination decisions made by state agencies between

January 12, 1984, and October 1983. See Rivera v. Heckler, 568

F.Supp. 235 (D.N.J.1983). It therefore does not apply to plain-

tiffs, at least some of whom already had had their benefits ter-

minated by the time this suit was filed in 1982, before the effec-

tive date of Pub.L. No. 97-455. Moreover, the new law does

nothing to relieve the nonfinancial burdens imposed on these

disabled plaintiffs.

11 Section 1361 provides: “The district courts shall have origi-

nal jurisdiction of any action in the nature of mandamus to com-

pel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.”

28a

ants, and the majority agrees, citing “the controlling

Mattern v. Weinberger [519 F.2d 150, 156-57 (3d

Cir.1975)}] precedent” in support of that position, Ma-

jority op. at Part III.B.2. I note at the outset that the

judgment in Mattern was vacated by the Supreme

Court and the case remanded for further consideration

in light of Mathews v. Eidridge, supra. Mathews v.

Mattern, 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812

(1976). When we reheard the case, we reserved the

question whether mandamus jurisdiction lies in an ac-

tion involving Social Security procedures. Mattern v.

Mathews, supra, 582 F.2d at 253 (“Like the district

court below, ... we do not need to reach the question of

mandamus jurisdiction.”). Although we observed that

“it is far from clear that section [405(h)] bars mandamus

jurisdiction in this case,” id., it seems apparent to me

that any further consideration of the availability of sec-

tion 1361 jurisdiction must be de novo.

Because I agree with the majority that jurisdiction as

to the federal defendants lies under section 405(g), I

reach the section 1361 question only to decide whether

jurisdiction lies over the state defendants.'? I first will

12 T recognize that the complaint alleged § 1361 as a basis for

jurisdiction only over the federal, and not the state, defendants.

However, “our freedom to predicate jurisdiction on theories not

pleaded below,” Ellis v. Blum, supra, 643 F.2d at 75; accord

Mumford v. Glover, 503 F.2d 878, 882-83 (5th Cir.1974); Albert

v. Chafee, 465 F.2d 367, 368 (9th Cir.1972) (per curiam); 1 J.

Moore, Moore’s Federal Practice 4 0.60[3] at 623 n.5 (2d ed.

1982); see Frederick L. v. Thomas, 578 F.2d 518, 516 & n.6 (3d

Cir.1978) (taking appellate jurisdiction under 28 U.S.C. § 1651

though appellant had pled jurisdiction only under 28 U.S.C.

§ 1291), convinces me that, at least in this case, plaintiffs’ fail-

ure to rely on § 1361 as to the state defendants does not bar my

considering that provision as a jurisdictional basis.

29a

discuss whether section 1361 jurisdiction is evailable at

all in cases that fall within section 405(g); i then will

turn to the question whether this is an appropriate case

in which to assert mandamus jurisdiction.

A. Availability of Mandamus Jurisdiction

The major obstacle to the availability, in theoretical

terms, of jurisdiction under section 1361 is section

405(h), which might appear to channel all suits involv-

ing SSA procedures through section 405(g). As we have

seen, section 405(h) bars resort to section 1331, see

Weinberger v. Salfi, supra; it also precludes invocation

of section 10 of the Administrative Procedure Act, see

Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51

L.Ed.2d 192 (1977). However, the Supreme Court has

thrice reserved the question whether section 405(h)

preempts mandamus jurisdiction, see Califano v. Ya-

masaki, 442 U.S. 682, 697-98, 99 S.Ct. 2545, 2555-56, 61

L.Ed.2d 176 (1979); Norton v. Mathews, 427 U.S. 524,

529-30, 96 S.Ct. 2771, 2774-75, 49 L.Ed.2d 672 (1976);

Mathews v. Eldridge, supra, 424 U.S. at 332 n.12, 96

S.Ct. at 901 n.12, and this Court has not previously

taken a position on this question, see Mattern v.

Mathews, supra, 582 F.2d at 253.

The Court of Appeals for the Second Circuit, how-

ever, has addressed the issue and has held that section

405(h) does not override mandamus jurisdiction. See

Ellis v. Blum, supra, 643 F.2d at 78-82.!5 In a compre-

13] do not read the Second Circuit’s opinion in Smith v.

Schweiker. supra note 7, as retreating substantially from the

position announced in Ellis. Smith held that “[m]andamus juris-

diction does not lie where the claims are not against the Secre-

tary for failure to comply but rather are directed at the proprie-

ty of the regulations themselves,” 709 F.2d at 779; this holding

30a

hensive and scholarly opinion, Judge Friendly analyzed

the legislative history of the relevant statutes and con-

cluded that Congress never manifested an intention to

preclude assertion of section 1361 jurisdiction in SSA

cases. The Court of Appeals for the Ninth Circuit has

reached a similar conclusion, holding that “language

prohibiting reliance on the federal question or manda-

mus provisions for any action “to recover on a claim

arising under the [Social Security] Act only applie[s] to

actual claims for benefits.” Ringer v. Schweiker, 697

F.2d 1291, 1298 (9th Cir.1982) (quoting section 405(h))

cert. granted Heckler v. Ringer, ___ U.S. —_, 108

S.Ct. 3535, 77 L.Ed.2d 1386 (1983); accord Ryan v.

Shea, 525 F.2d 268, 271-72 (10th Cir.1975).

As does the majority, I agree with the reasoning of

Ellis v. Blum and see no need to repeat Judge Friend-

ly’s careful analysis. I therefore concur in the majority’s

conclusion that, at least in some cases, section 1361 ju-

risdiction is available to review SSA procedures.

As I noted above, I reach the mandamus question

only in order to decide whether jurisdiction exists over

the state defendants. Section 1361, by its terms, applies

only to “officer[{s] or employee[s] of the United States

or any agency thereof” and thus might be read as not

covering state officials such as the defendants in this

case. These state defendants, however, are essentially

the alter egos of their SSA counterparts and effectively

are officers, employees, or agents of an agency of the

United States.!4 Thus just as I would not allow section

would seem to imply that section 1361 may be used in some

cases. I also note that Smith did not even cite the 1981 Ellis de-

cision and, at any rate, presumably cannot overrule it.

14 Plaintiffs therefore cannot proceed against the state de-

3la

1331 to be used to gain jurisdiction over these individu-

als, see supra Part I, I conclude, on the facts of this

case, that the state defendants fall within the ambit of

section 1361. Cf. Chaudoin v. Atkinson, 494 F.2d 1323,

1329 (3d Cir.1974) (finding section 1361 jurisdiction

over Adjutant General of Delaware National Guard be-

cause “Adjutant General of Delaware is an agency or

an agent of the United States and therefore within the

purview of § 1361”) (emphasis added).

The next question, then, is whether this is an appro-

priate case for the assertion of mandamus jurisdiction.

B. Appropriateness of Mandamus Jurisdiction

Precisely why it believes mandamus jurisdiction to be

appropriate in this case is something that the majority

does not explain. I therefore will set forth the reasons

why I believe that plaintiffs should be permitted to pro-

ceed against the state defendants under section 1361.

I begin with the proposition that courts traditionally

have been reluctant to assert mandamus jurisdiction for

the same reason that they generally have required ex-

haustion of administrative remedies: the desire to avoid

premature judicial review and to minimize interference

with the functioning of a coordinate branch of govern-

ment. Cf. Ellis v. Blum, supra, 643 F.2d at 81 (al-

lowing assertion of section 1361 jurisdiction only be-

fendants under 28 U.S.C. § 1343(a)(3) (Supp. IV 1980), for the

state defendants, in performing the roles delegated to them by

federal statute, are not acting under color of state law; more-

over, the Social Security Act is not legislation securing “equal

rights” within the meaning of § 1343(3), Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 620-23, 99 S.Ct. 1905,

1917-18, 60 L.Ed.2d 508 (1979). Accord Smith v. Schweiker,

supra note 7, 709 F.2d at 780.

32a

cause it would result in a “minimum of interference”

with SSA’s judgment). Thus, we have held that manda-

mus is an appropriate remedy “only where a clear duty

is owed the plaintiff or there is an abuse of discretion,”

Grant v. Hogan, 505 F.2d 1220, 1225 (8d Cir. 1974); ac-

cord Donovan v. United States, 580 F.2d 1203, 1208 (3d

Cir.1978). But when section 405(g) jurisdiction lies even

in the absence of exhaustion of administrative reme-

dies, as it does in this case, see supra Part II, I believe

that the presence of those factors prompting judicial

waiver of exhaustion requirements also insures that as-

sertion of mandamus jurisdiction will not unduly threat-

en the prerogatives of the concerned agency.

As I discussed above, a court may waive section

405(g)’s exhaustion requirements only when (1) the

claims presented to the court are substantially collater-

al to a substantive determination by the Secretary on

the question whether to continue or terminate payment

of disability benefits; (2) the Secretary has taken a fixed

and final position on the litigated issues; and (8) the

plaintiffs would suffer substantial hardship or irrepara-

ble harm if required to exhaust administrative reme-

dies. Because I conclude that the issues presented by

plaintiffs are in fact substantially collateral to plaintiffs’

claims for benefits and that defendants have taken a

fixed and final position on those issues, I do not see our

assumption of jurisdiction under section 405(g) or sec-

tion 1361 as interfering impermissibly with the opera-

tions of SSA or its affiliated state agencies. In short, I

see little practical difference in a case such as this be-

tween the two jurisdictional bases, as both are in-

formed by the same policy considerations.

33a

It is true, as I noted above, that our mandamus cases

appear to require the existence of a “clear right” owed

by the defendant agency or official to the plaintiff. The

existence vel non of such a clear right to relief, how-

ever, would seem to go to the merits of the claim and

relate to whether or not a writ of mandamus should is-

sue. On remand, therefore, the district court will have

to determine whether plaintiffs have a clear right to the

relief they seek. I note, however, that our recent deci-

sion in Kuzmin v. Schweiker, supra, would appear to

provide a solid basis for plaintiffs’ claims relating to the

medical-improvement standard and the presumption of

continuing disability.**

Accordingly, I conclude that, because plaintiffs have

satisfied the criteria of Mathews v. Eldridge, supra,

and Liberty Alliance of the Blind v. Califano, supra,

they may proceed by means of section i361 jurisdic-

tion!® against the state defendants.}”

15 We held in Kuzmin that, “cnce the claimant [in a

disability-benefits termination proceeding] has introduced evi-

dence that his or her condition remains essentially the same as

it was at the time of the earlier determination [of disability], the

claimant is entitled to the benefit of a presumption that his or

her condition remains disabling.” Kuzmin v. Schweiker, supra,

at 1237.

16 But cf. Smith v. Schweiker, supra note 7, 709 F.2d at 779

(holding that mandamus jurisdiction does not lie in case involv-

ing an unexhausted medical-improvement claim).

17 Even if my conclusion as to mandamus jurisdiction over the

state defendants is incorrect, there would appear to be still an-

other basis for jurisdiction over those individuals: pendent-

party jurisdiction. The state defendants, as I have said before,

see supra Parts I and IIIA, are the alter egos of the federal de-

fendants, and it would seem wasteful to prevent plaintiffs from

including them in the proceedings.

Because plaintiffs allege basically identical claims against the

state and federal defendants, and because the state defendants

appear here only as agents of SSA, the concerns expressed in

Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276

(1976), which involved separate state-law claims brought

against the defendant that plaintiff sought to add as a pendent

party, do not seem to apply here and thus do not bar an asser-

tion of jurisdiction. I also note that Aldinger purported to

decide

only the issue of so-called “pendent party” jurisdiction with

respect to a claim brought under §§ 1343(3) and 1983.

Other statutory grants and other alignments of parties and

claims might call for a different result. When the grant of

jurisdiction to a federal court is exclusive, for example, as

in the prosecution of tort claims against the United States

under 28 U.S.C. § 1346, the argument of judicial economy

and convenience can be coupled with the additional argu-

ment that only in a federal court may all of the claims be

tried together. As we indicated at the outset of this opin-

ion, the question of pendent-party jurisdiction is “subtle

and complex,” and we believe that it would be as unwise as

it would be unnecessary to lay down any sweeping pro-

nouncement upon the existence or exercise of such

jurisdiction.

Id. at 18, 96 S.Ct at 2422 (footnote omitted). Jurisdiction over

the claims against the federal defendants, at least, would seem

to be allowable only under 42 U.S.C. § 405(g) or 28 U.S.C.

§ 1361; thus, unlike those in Aldinger, the claims are exclusive-

ly within the province of the federal courts. Pendent-party ju-

risdiction therefore is more appropriate here than it was in that

ease. Cf. Stewart v. United States, 716 F.2d 755, 757-759 (10th

Cir.1982) (allowing pendent-party jurisdiction in Federal Tort

Claims Act suit over driver of Government vehicle who was em-

ployed by private operator of Government-owned nuclear-

weapons facility).

35a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1514

FRANK KUEHNER, DOROTHY BURAYAK, RICHARD

BURNS, ALICE HETHERINGTON, FRANK JENNINGS,

JR., PHILIP FISHER, CLINTON ROYAL, SOLOMON KATZ,

RAYMOND STANIEWICZ, JAMES N. MCKEOWN, JAMES

LOUGHLIN, MARGARET DOUGLAS, LAWRENCE COOK,

STEVEN SVERDLOW, ELAINE FLEIGELMAN AND RIVA

YANOVSKAYA, ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED, JAMES MCKEOWN AND

RIVA YANOVSKAYA, ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED, APPELLANTS

Vv.

RICHARD SCHWEIKER, SECRETARY, U.S.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

JOHN A. SVAHN, COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION, BARRY STERN, SECRETARY, Pa.

DEPT. OF LABOR AND INDUSTRY, JOHN DELPAINE,

DIRECTOR, PA. DISABILITY DETERMINATION BUREAU

36a

ON APPEAL

FROM THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 82-1839)

JUDGMENT

Present: GIBBONS, and BECKER, Circuit Judges and

WEBER, District Judge *

This cause came on to be heard on the record from

the United States District Court for the Eastern Dis-

trict of Pennsylvania and was argued by counsel June 1,

1983.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court entered August 2, 1982, be, and the

same is hereby reversed.

ATTEST

/s/ Sally Mvros

SALLY MvRos

Clerk

SEPTEMBER 19, 1983

*Honorable Gerald J. Weber, United States District Judge

for the Western District of Pennsylvaniz, sitting by

designation.

37a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1514

FRANK KUEHNER, DOROTHY BURAYAK, RICHARD

BURNS, ALICE HETHERINGTON, FRANK JENNINGS,

JR., PHILIP: FISHER, CLINTON ROYAL, SOLOMON KATZ,

RAYMOND STANIEWI1CZ, JAMES N. MCKEOWN, JAMES

LOUGHLIN, MARGARET DOUGLAS, LAWRENCE COOK,

STEVEN SYERDLOW, ELAINE F'LEIGELMAN AND RIVA

YANOVSKAYA, ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED, JAMES MCKEOWAN AND

RIVA YANOVSKAYA, ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED, APPELLANTS

Vv.

MARGARET M. HECKLER, SECRETARY, U.S.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

JOHN A. SVAHN, COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION, BARRY STERN, SECRETARY, PA.

DEPT. OF LABOR AND INDUSTRY, JOHN DELPAINE,

DIRECTOR, PA. DISABILITY DETERMINATION BUREAU

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIB-

BONS, HUNTER, WEIS, GARTH, HIGGIN-

BOTHAM, SLOVITER and BECKER, Circuit

Judges, WEBER, District Judge *

*Hon. Gerald J. Weber, United States District Judge for the

38a

The petition for rehearing filed by appellee in the

above entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular active serv-

ice not having voted for rehearing by the court in banc,

the petition for rehearing is denied.

Judge Garth would grant the petition for rehearing

particularly in light of Heckler v. Lopez, 104 S. Ct. 10

(1983), No. A-145, granting application for stay in

Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983).

By the Court,

/s/ John J. Gibbons

JOHN J. GIBBONS

Judge

Dated: NOVEMBER 28, 1983

Western District of Pennsylvania, on panel rehearing only.

39a

. APPENDIX D

UNITED STATES DISTRICT COURT,

E. D. PENNSYLVANIA.

C.A. No. 82-1839.

FRANK KUEHNER, ET AL.

Vv.

RICHARD S. SCHWEIKER, ET AL.

JULY 30, 1982.

MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

This action involves issues concerning review of disa-

bility cases to ascertain whether the recipients are cur-

rently disabled as defined by law. The plaintiffs bring

this action on behalf of a class of all Pennsylvania Social

Security Disability Insurance (SSDI) and Supplemental

Security Income (SSI) Disability beneficiaries whose

benefits have been terminated or are threatened with

termination. The plaintiffs challenge the standards em-

ployed in conducting these reviews and claim that they

are violative of the Social Security Act and the Due

Process guarantees of the Constitution. Their claims

rest on the following four grounds by which defendants

have allegedly erroneously and illegally terminated or

threatened to terminate plaintiffs and their class mem-

bers from receipt of SSDI or SSI benefits by failing:

(a) to determine whether substantial medical im-

provement has occurred;

(b) to allow presumptive effect to prior determina-

tion of disability;

Py

40a

(c) to develop fully and to accord appropriate

weight to evidence from treating medical per-

sonnel; and

(d) to follow a proper sequential disability evalua-

tion process, including consideration of medical

equivalence, combination of impairments, pain,

and residual functional capacity.

On these grounds, plaintiffs seek a declaration that the

standards applied and procedures followed in determin-

ing that the terminations of benefits are erroneous and

illegal, and seek an injunction barring defendants from

terminating benefits in such cases. The defendants

move for an order of dismissal of the action for lack of

subject matter jurisdiction. We grant defendants’ mo-

tion and direct plaintiffs to pursue their available and

adequate administrative remedies.

The plaintiffs assert that this court has jurisdiction to

hear their claims under 42 U.S.C. 405(g). This section

provides for judicial review of a final decision of the

Secretary made after a hearing by commencement of a

civil action within sixty days after notice of the deci-

sion. Weinberger v. Salfi, 422 U.S. 749, 763, 95 S.Ct.

2457, 2465, 45 L.Ed.2d 522 (1975). The requirement

that there shall have been a decision of the Secretary

which was “final” and “made after a hearing” was found

to be central to the grant of subject matter jurisdiction |

by a court. Jd. at 764, 95 S.Ct. at 2466. This adminis-

trative exhaustion requirement assures that the agency

functions efficiently and has an opportunity to correct

its own errors, as well as affords the parties and courts

the benefit of its experience and expertise and its com-

4la

pilation of a record which is adequate for judicial re-

view. Jd. at 765, 95 S.Ct. at 2466.

The initial determination of what constitutes a “final”

decision is left to the Secretary, as is the determination

of when full exhaustion of internal review procedures is

not necessary to meet the requirement of a “final” deci-

sion under 405(g). As the Supreme Court stated in

Weinberger v. Salfi, supra, at 765-767, 95 S.Ct. at

2466-2467, where the Secretary has satisfied himself

that the claim is neither otherwise invalid nor other-

wise cognizable under another statutory provision and

that the only issue is constitutional, he may voluntarily

waive the exhaustion prerequisite. This determination

is left to the Secretary since ultimate responsibility for

the integrity of the administrative program is his. In

the case sub judice, plaintiffs’ claims are both factual

and legal, disputing findings of fact and applications of

statutory and regulatory law. The Secretary has deter-

mined that these claims should be pursued according to

the administrative process and that a record should be

compiled according to such process. Upon a finding that

plaintiffs’ claims are valid, the Secretary would then

confer the relief plaintiffs sought—that they are enti-

tled to continue to receive disability benefits. If the

Secretary were to find that the claims were invalid,

then the court and parties would have a fully compiled

record for adequate review. For these reasons, the Sec-

retary refuses to waive the statutory requirement of

exhaustion of remedies.

Neither is this an instance in which the exhaustion

requirement would be appropriately waived by the

court. Such judicial waiver has occurred in the past

where the action involved a constitutional challenge

42a

which was collateral to the substantive claim of entitle-

ment. Mathews v. Eldridge, 424 U.S. 319, 330, 96,

S.Ct. 898, 900, 47 L.Ed.2d 18 (1975). The judicial waiv-

er has not been allowed where the action is directed to-

wards upsetting the determination of the Secretary on

the merits, as it is clearly not collateral to the substan-

tive claim and exhaustion is required under 405(g).

Humana of South Carolina, Inc. v. Califano, 590 F.2d

1070 (D.C.Cir. 1978). This is equally so where the chal-

lenge is a constitutional one to statutory provisions lim-

iting the availability of benefits and where the chal-

lenge is on the merits to limitations on benefits imposed

by regulations. Id; Rhode Island Hospital v. Califano,

585 F.2d 1153 (1st Cir. 1978). In the recent case of

Humana, the Court of Appeals for the District of Co-

lumbia Circuit refused to consider statutory and consti-

tutional contentions challenging regulations limiting re-

imbursement. The court held that the statutory and

constitutional claims consisted of a grievance respecting

the amount of reimbursement due and was “unmistaka-

bly directed at upsetting on the merits the Secretary’s

determination.” Therefore, the grievance must first be

submitted for any administrative processing available

under the Act’s procedures. Jd., at 1079. Accord,

Rhode Island Hospital v. Califano, supra, at

1158-1159. The Humana court further held that the

district court, refusing to order the requested retroac-

tive corrective adjustments, but instead directing an

administrative redetermination of the acceptable level

of remedies, could not alter the essential character and

objective of the suit nor the need for prior resort to the

administrative process. Humana of South Carolina,

Inc., v. Califano, supra, at 1080. The case sub judice is

43a,

similar in that plaintiffs claims consist of a grievance

respecting the benefits due, namely that plaintiffs

should continue to receive benefits, and is directed at

upsetting the merits of the Secretary’s determination.

Their constitutional claims are inextricably intertwined

with these grievances. They are not collateral. Such

claims should be submitted for any administrative proc-

essing available under the Social Security Act.

Because the exhaustion requirement is “something

more than simply a codification of the judicially devel-

oped doctrine of exhaustion which cannot be disposed of

by merely a judicial conclusion of futility,” Weinberger

v. Salfi, supra at 766, it cannot be excused by a claim

that the administrative process is unlikely to be re-

solved in favor of plaintiffs. Neither can it be disposed

of by a claim of delayed review. Bob Jones University

v. Simon, 416 U.S. 725, 747, 94 S.Ct. 2038, 2051, 40

L.Ed.2d 496 (1974). Both of these conditions, even if

present, do not persuade this court to waive the ex-

haustion requirement in the case swb judice.

For the court to circumvent the exhaustion re-

quirement and review plaintiffs’ individual claims would

impose an impossible burden of proof upon the Secre-

tary. To disprove such a claim, the Secretary would be

required to prove that the evaluative procedures were

followed in each individual case without the benefit of a

full administrative record and background on claimants

typically developed when the administrative process

runs it full course. For the court to circumvent the

process and review en masse plaintiffs’ claims without

regard to the specific facts of each individual’s case,

contradicts the statute’s demand that “disability claims

be evaluated on a case-by-case method, taking into ac-

44a

count each applicant’s peculiar characteristics.” Santise

v. Schweiker, 676 F.2d 925, 930 (3d Cir. 1982).

Such dangerous and unwarranted results further sup-

port the requirements of 405(g) and the proposition that

a judicial review of the Secretary’s actions is exclusive

and cannot be circumvented by resort to the general ju-

risdiction of the district courts. Surely, the language of

405(g) does not suggest that Congress in 1939 thought

it was establishing procedures to be used in class ac-

tions challenging the constitutionality of the provisions

of the Act or of procedures adopted by the Secretary,

and seeking broad injunctive and declaratory relief.

Ellis v. Blum, 643 F.2d 68, 74 (2d Cir. 1981).

Alternatively, plaintiffs assert that this court has

a jurisdictional basis under the mandamus statute,

28 U.S.C. § 1361. However, this section provides man-

damus jurisdiction only where there are “extraordinary

circumstances.” Kerr v. United States District Court,

426 U.S. 394, 402-403, 96 S.Ct. 2119, 2123-2124, 48

L.Ed.2d 725 (1976); State Board of Education v. Fox,

620 F.2d 578, 579 (6th Cir. 1980). The party seeking

such jurisdiction must have “no other adequate means

to attain the relief he desires.” Kerr v. United States

District Court, supra at 403. See also, Kennecott Cop-

per Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356

(9th Cir. 1978); Haneke v. Secretary of HEW, 535 F.2d

1291, 1296 n. 15 (D.C.Cir.1976); 1 Moore’s Federal

Practice, 4 0.62[17], at 700.51. In the case sub judice,

plaintiffs have not satisfied the criteria for the extraor-

dinary remedy of mandamus. The plaintiffs have other

ample and available means by which to have their

claims reviewed, such as the administrative procedures

of an Administrative Law Judge hearing and an Ap-

ee eee

45a

peals Council review, and such as judicial review pursu-

ant to 405(g) with the benefit of an administrative

record.

The plaintiffs’ assertion of jurisdiction under 28

U.S.C. § 1343 over State defendants must also fail.

Section 1343 requires that persons have acted “under

color of any state law, statute, ordinance, regulation,

custom or usage,” for jurisdiction to be established. The

State defendants administering the disability benefits

program have acted under color of federal law as mere

agents of the Secretary and have not acted under color

of any State law or statute in the case sub judice. Ellis

v. Blum, supra at 74.

Lastly, the assertion of pendent jurisdiction must

fail. The doctrine of pendant jurisdiction is applicable

only where there is a federal claim and a state claim.

United Mine Workers v. Gibbs, 383 U.S. 715, 725-726,

86 S.Ct. 1130, 1138-1189, 16 L.Ed.2d 218 (1966). As

previously stated, there is neither a federal nor state

claim in the case sub judice at this time.

46a

APPENDIX E

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

1. 28 U.S.C. (Supp. V) 1331 provides:

Federal question

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

2. 28 U.S.C. 1361 provides:

Action to compel an officer of the United States

to perform his duty

The district courts shall have original jurisdiction

of any action in the nature of mandamus to compel

an officer or employee of the United States or any

agency thereof to perform a duty owed to the

plaintiff.

3. Section 205(b), (g) and (h) of the Social Security

Act, as codified at 42 U.S.C. (& Supp. V) 405(b), (g)

and (h) provide:

Evidence, procedure and certification for

payments

* * K K *

(b) Administrative determination of entitlement

to benefits statement; findings of fact; hear-

ings; investigations

The Secretary is directed to make findings of

fact, and decisions as to the rights of any individual

applying for a payment under this subchapter. Any

such decision by the Secretary which involves a de-

termination of disability and which is in whole or in

part unfavorable to such individual shall contain a

statement of the case, in understandable language,

setting forth a discussion of the evidence, and

47a

stating the Secretary’s determination and the rea-

son or reasons upon which it is based. Upon re-

quest by any such individual or upon request by a

wife, divorced wife, widow, surviving divorced

wife, surviving divorced mother, husband, widow-

er, child, or parent who makes a showing in writ-

ing that his or her rights may be prejudiced by any

decision the Secretary has rendered, he shall give

such applicant and such other individual reasonable

notice and opportunity for a hearing with respect

to such decision, and, if a hearing is held, shall, on

the basis of evidence adduced at the hearing, af-

firm, modify, or reverse his findings of fact and

such decision. Any such request with respect to

such a decision must be filed within sixty days af-

ter notice of such decision is received by the indi-

vidual making such request. The Secretary is fur-

ther authorized, on his own motion, to hold such

hearings and to conduct such investigations and

other proceedings as he may deem necessary or

proper for the administration of this subchapter. In

the course of any hearing, investigation, or other

proceeding, he may administer oaths and affirma-

tions, examine witnesses, and receive evidence.

Evidence may be received at any hearing before

the Secretary even though inadmissible under

rules of evidence applicable to court procedure.

* * K K *

(g) 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 ac-

tion commenced within sixty days after the mailing

to him of notice of such decision or within such fur-

ther time as the Secretary may allow. Such action

shall be brought in the district court of the United

48a

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 Co-

lumbia. 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 tran-

script of the record, a judgment affirming, modi-

fying, or reversing the decision of the Secretary,

with or without remanding the cause for a rehear-

ing. The findings of the Secretary as to any fact, if

supported by substantial evidence, shall be conclu-

sive, and where a claim has been denied by the

Secretary or a decision is rendered under subsec-

tion (b) of this section which is adverse to an indi-

vidual 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 court shall review only the ques-

tion of conformity with such regulations and the

validity of such regulations. The court may, on mo-

tion 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 show-

ing that there is new evidence which is material

and that there is good cause for the failure to incor-

porate such evidence into the record in a prior pro-

ceeding; and the Secretary shall, after the case is

remanded, and after hearing such additional evi-

dence if so ordered, modify or affirm his findings of

fact or its decision, or both, and shall file with the

49a

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 mod-

ifying 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 original findings of fact and decision. The judg-

ment of the court shall be final except that it shall

be subject to review in the same manner as a judg-

ment in other civil actions. Any action instituted in

accordance with this subsection shall survive not-

withstanding any change in the person occupying

the office of Secretary or any vacancy in such

office.

(h) Finality of Secretary’s decision

The findings and decisions 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

person, 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 un-

der this subchapter.

4. Sections 221(a), (c), (d) and (h) of the Social Secu-

rity Act, as codified at 42 U.S.C. (Supp. V) 421(a), (c),

(d) and (h), provide:

Disability determinations

(a) State agencies

(1) In the case of any individual, the determina-

tion of whether or not he is under a disability (as

defined in section 416(i) or 423(d) of this title) and

of the day such disability began, and the determi-

nation of the day on which such disability ceases,

shall be made by a State agency, notwithstanding

50a

any other provision of law, in any State that

notifies the Secretary in writing that it wishes to

make such disability determinations commencing

with such month as the Secretary and the State

agree upon, but only if (A) the Secretary has not

found, under subsection(b)(1) of this section, that

the State agency has substantially failed to make

disability determinations in accordance with the

applicable provisions of this section or rules issued

thereunder, and (B) the State has not notified the

Secretary, under subsection (b)(2) of this section,

that it does not wish to make such determinations.

If the Secretary once makes the finding described

in clause (A) of the preceding sentence, or the

State gives the notice referred to in clause (B) of

such sentence, the Secretary may thereafter deter-

mine whether (and, if so, beginning with which

month and under what conditions) the State may

again make disability determinations under this

paragraph.

(2) The disability determinations described in

paragraph (1) made by a State agency shall be

made in accordance with the pertinent provisions

of this subchapter and the standards and criteria

contained in regulations or other written guidelines

of the Secretary pertaining to matters such as disa-

bility determinations, the class or classes of indi-

viduals with respect to which a State may make

disability determinations (if it does not wish to do

so with respect to all individuals in the State), and

the conditions under which it may choose not to

make all such determinations. In addition, the Sec-

retary shall promulgate regulations specifying, in

such detail as he deems appropriate, performance

standards and administrative requirements and

procedures to be followed in performing the disa-

bility determination function in order to assure ef-

5la

fective and uniform administration of the disability

insurance program throughout the United States.

The regulations may, for example, specify matters

such as—

(A) the administrative structure and the rela-

tionship between various units of the State agen-

cy responsible for disability determinations,

(B) the physical location of and relationship

among agency staff units, and other individuals

or organizations performing tasks for the State

agency, and standards for the availability to ap-

plicants and beneficiaries of facilities for making

disability determinations,

(C) State agency performance criteria, includ-

ing the rate of accuracy of decisions, the time pe-

riods within which determinations must be

made, the procedures for and the scope of review

by the Secretary, and, as he finds appropriate,

by the State, of its performance in individual

cases and in classes of cases, and rules governing

access of appropriate Federal officials to State

offices and to State records relating to its admin-

istration of the disability determination function,

(D) fiscal control procedures that the State

agency may be required to adopt, and

(E) the submission of reports and other data,

in such form and at such time as the Secretary

may require, concerning the State agency’s ac-

tivities relating to the disability determination.

Nothing in this section shall be construed to au-

thorize the Secretary to take any action except

pursuant to law or to regulations promulgated pur-

suant to law.

* ek K K *

(c) Review of determination by Secretary

(1) The Secretary may on his own motion or as

required under paragraphs (2) and (8) review a de-

52a

termination, made by a State agency under this

section, that an individual is or is not under a disa-

bility (as defined in section 416(i) or 425(d) of this

title) and, as a result of such review, may modify

such agency’s determination and determine that

such individual either is or is not under a disability

(as so defined) or that such individual’s disability

began on a day earlier or later than that deter-

mined by such agency, or that such disability

ceased on a day earlier or later than that deter-

mined by such agency. A review by the Secretary

on his own motion of a State agency determination

under this paragraph may be made before or after

any action is taken to implement such

determination.

(2) The Secretary (in accordance with paragraph

(3)) shall review determinations, made by State

agencies pursuant to this section, that individuals

are under disabilities (as defined in section 416(1) or

423(d) of this title). Any review by the Secretary of

a State agency determination under this paragraph

shall be made before any action is taken to imple-

ment such determinaton.

(3) In carrying out the provisions of paragraph

(2) with respect to the review of determinations,

made by State agencies pursuant to this section,

that individuals are under disabilities (as defined in

section 416(i) or 423(d) of this title), the Secretary

shall review— .

(A) at least 15 percent of all such determina-

tions made by State agencies in the fiscal year

1981,

(B) at least 35 percent of all such determina-

tions made by State agencies in the fiscal year

1982, and

53a

(C) at least 65 percent of all such determina-

tions made by State agencies in any fiscal year

after the fiscal year 1982.

(d) Hearings and judicial review

Any individual dissatisfied with any determina-

tion under subsection (a), (b), (c), or (g) of this sec-

tion shall be entitled to a hearing thereon by the

Secretary to the same extent as is provided in sec-

tion 405(b) of this title with respect to decisions of

the Secretary, and to judicial review of the Secre-

tary’s final decision after such hearing as is provid-

ed in section 405(g) of this title.

* * K K *

(h) Periodic reviews of eligibility

In any case where an individual is or has been

determined to be under a disability, the case shall

be reviewed by the applicable State agency or the

Secretary (as may be appropriate), for purposes of

continuing eligibility, at least once every 3 years;

except that where a finding has been made that

such disability is permanent, such reviews shall be

made at such times as the Secretary determines to

be appropriate. Reviews of cases under the preced-

ing sentence shall be in addition to, and shall not be

considered as a substitute for, any other reviews

which are required or provided for under or in the

administration of this subchapter.

5. Section 1631(c) of the Social Security Act, as codi-

fied at 42 U.S.C. (& Supp. V) 42 U.S.C. 1383(c),

provides: |

Procedure for payment of benefits

* * * * *

(c) Hearing to determine eligibility or amount

of benefits; time within which to request

54a

hearing; time for determinations of Secre-

tary pursuant to hearing; judicial review

(1) The Secretary is directed to make findings of

fact, and decisions as to the rights of any individual

applying for payment under this subchapter. Any

such decision by the Secretary which involves a de-

termination of disability and which is in whole or in

part unfavorable to such individual shall contain a

statement of the case, in understandable language,

setting forth a discussion of the evidence, and

stating the Secretary’s determination and the rea-

son or reasons upon which it is based. The Secre-

tary shall provide reasonable notice and opportuni-

ty for a hearing to any individual who is or claims

to be an eligible individual or eligible spouse and is

in disagreement with any determination under this

subchapter with respect to eligibility of such indi-

viduai for benefits, or the amount of such individu-

al’s benefits, if such individual requests a hearing

on the matter in disagreement within sixty days af-

ter notice of such determination is received, and, if

a hearing is held, shall, on the basis of evidence ad-

duced at the hearing affirm, modify, or reverse his

findings of fact and such decision. The Secretary is

further authorized, on his own motion, to hold such

hearings and to conduct such investigations and

other proceedings as he may deem necessary or

proper for the administration of this subchapter. In

the course of any hearing, investigation, or other

proceeding, he may administer oaths and affirma-

tions, examine witnesses, and receive evidence.

Evidence may be received at any hearing before

the Secretary even though inadmissible under the

rules of evidence applicable to court procedure.

(2) Determination on the basis of such hearing,

except to the extent that the matter in disagree-

ment involves a disability (within the meaning of

55a

section 13882c(a)(3) of this title), shall be made with-

in ninety days after the individual requests the

hearing as provided in paragraph (1).

(3) The final determination of the Secretary af-

ter a hearing under paragraph (1) shall be subject

to judicial review as provided in section 405(g) of

this title to the same extent as the Secretary’s final

determinations under section 405 of this title.

* * * K *

6. 20 C.F.R. 416.903, governing the Supplemental

Security Income Program, provides:

Who makes. disability and _ blindness

determinations.

(a) State agencies. State agencies make disabili-

ty and blindness determinations for the Secretary

for most persons living in the State. State agencies

make these disability and blindness determinations

under regulations containing performance stand-

ards and other administrative requirements

relating to the disability and blindness determina-

tion function. States have the option of turning the

function over to the Federal Government if they no

longer want to make disability determinations.

_ Also, the Secretary may take the function away

from any State which has substantially failed to

make disability and blindness determinations in ac-

cordance with these regulations. Subpart J of this

part contains the rules the States must follow in

making disability and blindness determinations.

(b) Social Security Administration. The Social

Security Administration will make disability and

blindness determinations for the Secretary for—

(1) Any person living in a State which is not

making for the Secretary any disability and blind-

ness determinations or which is not making those

56a

determinations for the class of claimants to which

that person belongs; and

(2) Any person living outside the United States.

(c) What determinations are authorized. The

Secretary has authorized the State agencies and

the Social Security Administration to make deter-

minations about—

(1) Whether you are disabled or blind;

(2) The date your disability or blindness began;

and

(3) The date your disability or blindness

stopped.

(d) Review of State Agency determinations. On

review of a State agency determination or redeter-

mination of disability or blindness we may find

that—

(1) You are, or are not, disabled or blind, re-

gardless of what the State agency found;

(2) Your disability or blindness began earlier or

later than the date found by the State agency; and

(8) Your disability or blindness stopped earlier

or later than the date found by the State agency.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Petition for Writ of Certiorari — Heckler v. Kuehner · 469 U.S. 977 | Frix