Petition for Writ of Certiorari — Heckler v. Kuehner
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
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 :
MBS
Sich ‘a
aa 3
~ 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.