Petition for Writ of Certiorari — Heckler v. Lopez

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“E15 JUL 20 1984

“ No. ALEXANOE? L. STEVAS,

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

MARGARET M., HECKLER, SECRETARY OF HEALTH

and HUMAN SERVICES, PETITIONER

Vv.

MARIO LOPEZ, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH 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

HOWARD S. SCHER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

~~ BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the district court had jurisdiction over the

claims of class members who received adverse adminis-

trative decisions under Title II or Title XVI of the

Social Security Act more than 60 days before this suit

was filed, but who did not seek review of those decisions

within the 60 days allowed under the Act and imple-

menting regulations.

(1) &

PARTIES TO THE PROCEEDINGS

The petitioner is the Secretary of Health and Human

Services. The respondents consist of the following groups

of plaintiffs in district court:

1. Twenty individuals were named as plaintiffs in the

complaint: Mario Lopez, Wallace Dorsey, Joel Tapia,

Louis Ortiz, Marilyn Cropper, Carl Smith, James Board,

Mary R. Diaz, Richard N. Alton, Lloyd R. Hittle, Ouida

Brown, Irvin Evans, Trinidad Lopez, Elizabeth Holmes,

Emma Kelly, Kimberly Bailey, Marvin Robert White,

Wendy Fumi Murakami, Freddy Rose, and David

Valenzuela.

2. Fourteen organizations were named as plaintiffs in

the complaint: People First of California, Inc., People

United for Self Help, Inc., Disabled Rights Union, Los

Angeles Network Against Psychiatric Assault, Alliance

of Social Security Disability Recipients, Humboldt Access

Project, Adult Independence Development Center, Cali-

fornia Association for Physically Handicapped (Inde-

pendent Living Center), Center for Independent Living

for San Gabriel Valley, Rolling Start, South East Center

for Independent Living, Consortium of Independent Liv-

ing Centers, Senior Political Action Federation, and

California Association of the Physically Handicapped.

8. The district court certified a class of plaintiffs con

sisting of (App., infra, 99a) :

all persons who live within [the Ninth Circuit], who

(a) receive or received Supplemental Security In-

come Disability benefits or Social Security disability

insurance benefits and have been or will be consid-

ered for termination after August 30, 1981, or (b)

receive or received Supplemental Security Income

disability benefits under the “grandfather clause” of

the Social Security Act, 42 U.S.C. § 1882c(a) (3) (E),

and have been or will be considered for termination

after August 25, 1980, such consideration being or

having been for the asserted reason that the claim-

ant’s disability had ceased.

TABLE OF CONTENTS

Page

ETE ESE SSS 1

es cCabuneuianavenancorsons 2

Statutory and regulatory provisions involved ................ 2

a ussnswenbewsouaconnes 2

A. The statutory and regulatory framework........ 3

B. The proceedings in this case ....0.00...000000..2ee0oe----- 7

Reasons for granting the petition 0... 15

a aecutncheunsbesheavaneenseeauase 29

es chumavensiieshbaameds la

i camnsnamessnuusemmmmaronecs 46a

ES EEE AEE 47a

Neen ea si pstddbdunaulbindtnsenexune 67a

ES Ee ee 73a

Neen nnnsinscnsubuisapsasiibaaccauns 84a

EE EEE De Sa 94a

Neen ee eo seamonvumatusinipmeucasioneaaie 98a

EEE ESTE RIE ROR a 10la

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 .......... 27

Califano v. Sanders, 430 U.S. 99 00000000000... 7, 12, 15, 16, 17,

20, 21, 22, 29

Califano v. Yamasaki, 442 U.S. 682 ........000--.. 17

Cobbledick v. United States, 309 U.S. 328 .............. 19

Finnegan V. Matthews, 641 F.2d 1340 ........... 7, 8, 9, 10, 11,

14, 20, 25

Goldberg v. Kelly, 897 U.S. 254 .........../..................-- 5

Be We EO, BO Wy FO nnn oncns nnn. secs 19

(111)

meena eee mmeemaaieemee

Cases—Continued : Page

Heckler v. Campbell, No. 81-1983 (May 16, 1983)... 18

Heckler v. Day, No. 82-1371 (May 22, 1984) ........ 4

Heckler v. Ringer, No. 82-1772 (May 14, 1984) ..15, 16, 19,

20, 27, 28, 29

Hunt v. Schweiker, 685 F.2d 121 .......................-.-++ 26

Lehman v. Nakshian, 453 U.S. 156 ......................-.-- 26

Lorillard v. Pons, 484 U.S. 576 ............2...-.....-----.000- 19

Mathews V.. Dime, GRO UB. GF ..eccnsesceeeseesscsscesesccsees. 19

Mathews V. Eldridge, 424 U.S. 319 .................... 3, 4, 5, 8, 20

North Dakota v. United States, No. 81-773 (Mar.

DRIED idpccantnisacctconintaeniserphanioiasencadin qettinbenisenammmnnotenses 28

Patti v. Schweiker, 669 F.2d 582....7, 8, 9, 10, 11, 14, 20, 25

Schweiker v. Hansen, 450 U.S. 785 ..................-------- 14

Soriano Vv. United States, 352 U.S. 270 .................... 26

United States v. Estate of Donnelly, 397 U.S. 286.. 25

United States v. Kubrick, 444 U.S. 111 .................... 26

United States v. Mendoza, No. 82-849 (Jan. 10,

| aes teatee sabe Ose ANNO NC UNS eve tek DEC ene mON 22, 25

United States v. Morton, No. 83-916 (June 19,

RRS Ser bee ee aN Scr Ac Ue ene ene 25

United States v. Sherwood, 312 U.S. 584 -.............. 26

United States v. Testan, 424 U.S. 382 ..............2....... 26

United States v. Welden, 377 U.S. 96 ..................---- 28

Utah Power & Light Co. v. United States, 243 U.S.

RIES RE Sn ESE verte eee aL, WLI on eee ee 25

Weinberger V. Salfi, 422 U.S. 749....15, 19, 21, 22, 27, 28, 29

Constitution, statutes, regulations and rule:

U.S. Const. Amend. V (Due Process Clause)........ 5

Act of Oct. 5, 1962, Pub. L. No. 87-748, 76 Stat.

eae ce esnaie 28

Social Security Act, 42 U.S.C. (& Supp. V) 304

et seq.:

Tit. II, 42 U.S.C. (& Supp. V) 401 et seq. uu. 2 |

OT I I hi eens pacceveeccetcicceommsenetnrertacnene 27 |

ag ee ty CD one inca c onsen erences 2

§ 205(b), 42 U.S.C. (Supp. V) 405(b) ............ 2,5, 18

el me Bik cee fs | passim

§ 205(g), 42 U.S.C. (Supp. V) 405(g) ....2, 6, 7, 8, 13,

16, 21, 27

Constitution, statutes, rerulations and rule—Continued

§ 205 (h), 42 U.S.C. 405 (hh)... 2, 23,

Ea We re ID ricer ete cece

§ 205 note, 42 U.S.C. 405 note ...........0000000000....

§ 221 (a), 42 U.S.C. (Supp. V) 421 (a)...............

§ 221(d), 42 U.S.C. (Supp. V) 421(d) -...........

§ 221 (h), 42 U.S.C. (Supp. V) 421(h) ...........

§ 223 (a) (1), 42 U.S.C. (& Supp. V) 423 (a)

Sf AAR Aces Ae NON PAD OS OM Ss be LA

§ 228 (d) (2) (A), 42 U.S.C. 423 (d) (2) (A)....

§ 223 (d) (3), 42 U.S.C. 423(d) (8) _.....00....

§ 225, 42 U.S.C. (& Supp. V) 425 0.000...

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

§ 1614(a) (3) (B), 42 U.S.C. (& Supp. V)

POO | Se ein

§ 1614(a) (3) (E), 42 U.S.C. (& Supp. V)

FL LS 5 RRR Lee taney « Sana

§ 1631(c), 42 U.S.C. (Supp. V) 13838(c)...... ‘

§ 1631(c) (1), 42 U.S.C. (Supp. V) 1883 (c)

DU sisieiscnsesinnicbitonwicmataeiarceleeaia names ae

§ 1631 (c) (3), 42 U.S.C. (Supp. V) 1383 (c)

GU Msicncenivac ch coueusieadhtae cae.

§ 1631(d) (1), 42 U.S.C. (& Supp. V) 1383

END seheiseennidavieuciiendsmaarisanidiien btionereeeics

§ 16383 (a), 42 U.S.C. 1888b(a) ........0000000000....

Social Security Amendments of 1954, ch. 1206,

es Me NS TI icc prse eee eles eee

Socia} Security Amendments of 1956, ch. 836,

ee FFARR Ee Donets Ter te

Social Security Amendments of 1972, Pub. L. No.

92-603, Tit. III, 86 Stat. 1465 et seq. _.........000...

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

§ 2, 96 Stat. 2498 (to be codified at 42 U.S.C.

ny NT TUR ELIA SACRO Re

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

U.S.C. 405 (b) (2) ) ......20000.... geeducbnied ie uiecus

Pub. L. No. 98-118, § 2, 97 Stat. 803 0000.

Oe MS EE Sakcsdonsassccsdciclacdepnguaeavaciedastomaiboneniaeal

ee MINIS (hattoesncebeetancstossenmuesnnipanianstenated 2, 18, 27,

Page

27, 28

Constitution, statutes, regulations and rule—Continued Page

20 C.F.R.:

Pt. 403:

Section 403.706(c) (1954 & 1956) ............ 18

Section 403.708 (b) (1954 & 1956) -......... 18

Section 403.708 (g) (1954 & 1956) _.......... 18

I IID is cccnaccessnekin asim iceedeinscnancens 18

Section 403.709 (1) (1954 & 1956) _.......... 18

Section 403.710(b) (1954 & 1956) ........... 18

Section 403.710 (e) (1954 & 1956) _......... 18

Pt. G06, Barbet. J. ..........--2.0ecccceeneescnsereteneneceesees 2

Section 404.900(a) (5) ............-------.--20..0200- 6

ee 8 ) anernn 5

I I x. ocnccsensanccnsnecccuvoweswsnevas 7

ea. scassknnainenooeecamensasnees 4

ae MINI uiesnndvciwisccineesraenecescevassencses _ 4

Sections 404.907-404.921 _.........0.......-.--e-e- 4

Section 404.908 (1972) -....-..........2.2---------+ 18

Section 404.909 (a) (1) -....------2------eeeeee eee ee 4

Section 404.909 (1) ......2....----c..eeeceeeee ten enee 5

Section 404.911 (1972) ..................22.------+-- 18

Section 404.916 (1972) -..........-.... siabcanbentes 18

Section 404.918 (1972) _....-.-..-...------------+ 18

ia EOD) «onc vas cw oce~nncesereeescsvevesnaes 5

OE i ccnienninrceiaswsinnniiensnnbuses 5

Section 404.933 (b) ....---------------2-2e22eeeee eee 5

Section 404.940 (1972) _..............------------+ 18

Sections 404.944-404.965 _.....................------ 5

Section 404.946 (1972) -.......--.......-----.------- 18

Section 404.951 (1972) ..... ae ee 18

Section 404.956 (a) .................-..-...---2s..0200e0s 6

Sections 404.967-404.983 _...................------- 6

Section 404.968 (a) (1) ---.---.--.---2-2-----------+ 6

eS ee 6, 7

I TI os cinociciccswovivsncvenncenavinssqnnosonenees 7, 24

Section 404.967 ..........---.--.------0----ceeeneeensee-eee 7,2

I ON caiexinsvnwinnsinscndeessninenhtaoiouetn 7,10

Section 404.989 _............0222..---2eeeceeeeeeeeeeecee es 7

VII

ie)

Constitution, statutes, regulations and rule—Contnued

Section 404.1608 nn... ececeececeeeeees

Section 404.1579 2000

Section 404.1586 000000.

Section 404.1693 2000.00.00 cccccccceeceeeececeeee

Section 404.1594 00000. 3,

Sections 404.1594-404.1595 ueeeenes

Section 404.1597 2.200000.

Pt. 416, Subpt. N 0. qeoraunnanabeapnaerelsiaeats

Section 416.903 .

Section 416.993 __.

Section 416.994 __. nicsismubaecucddvesaqancenens

Section 416.1836 (b) 000.

Section 416.1403 (a) (5) ivueuneveacanavtsases

Section 416.1403 (a) (8)

Section 416.1404 (b) (3)

Section 416.1405 syiuhanenecmapbsesetanseanevons

Section 416.1407 200000000000.

Section 416.1409 (a) 000. wo.

Sections 416.1429-416.1465 00

Section 416.1455(a) 00. _

Sections 416.1467-416.1483 000

Section 416.1468 2000.

or) —

ATAMAIAIOAOAIAIAI ATA IAIGCh RP NY wWhKTR DOR

oS.

fo)

—

or)

—

ie @)

Bast

Miscellaneous:

130 Cong. Rec. :

p. H1986 (daily ed. Mar. 27,1984) ve 6

p. S6203 (daily ed. May 22,1984) 6

5 Fed. Reg. (1940) :

hi cacseeanesnvnicsinvuerstszavessipecninaasuaans 18

45 Fed. Reg. 55566 (1980) 000. 9

H.R. 3755, 98th Cong., 2d Sess. (1984) 6, 29

H.R. Rep. 728, 76th Cong., 1st Sess. (1929) 27

S. Rep. 734, 76th Cong., Ist Sess. (1939) .. 27

Iu the Supreme Court of the United States

OCTOBER ‘TERM, 1984

No.

MARGARET M. HECKLER, SECRETARY OF HEALTH

and HUMAN SERVICES, PETITIONER

Vv.

MARIO LOPEZ, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the Secretary of

Health and Human Services, petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The February 22, 1984 opinion of the court of appeals

(App., infra, 1a-45a) is reported at 725 F.2d 1489, and

the August 24, 1983 opinion of the court of appeals deny-

ing the Secretary’s application for a stay pending appeal

(App., infra, 47a-66a) is reported at 713 F.2d 14382.

The August 18, 1983 order of the court of appeals deny-

ing the Secretary’s emergency motion for a stay pending

appeal (App., infru, 67a-72a) is unreported. The district

court’s order dated June 16, 1983 (App., infra, 84a-93a)}

is reported at 572 F. Supp. 26. The district court’s

memorandum of decision dated June 16, 1983 (App.,

infra, 73a-83a), its memorandum of decision dated July

27, 1983 (App., infra, 94a-97a), and its order dated

August 4, 1983, amending the June 16, 1983 memoran-

dum of decision and order (App., infra, 98a-100a) are

unreported.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

February 22, 1984 (App., infra, la), and the order of

the court of appeals directing that no petition for re-

hearing or rehearing en banc would be entertained by

the panel was entered on the same date (App., infra,

46a). By order dated May 15, 1984, Justice Rehnquist

extended the time within which to file a petition for a

writ of certiorari to and including June 29, 1984, and

by order dated June 21, 1984, Justice Rehnquist further

extended the time within which to file the petition to and

including July 20, 1984. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

28 U.S.C. 1331 and 1361; Sections 205(a), (b), (g)

and (h), £21(a) and (d), and 1631(c) and (d) (1) of

the Social Security Act, as codified at 42 U.S.C. (& Supp.

V) 405(a), (b), (g) and (h), 421(a) and (d), and

1383(¢c) and (d) (1); and relevant provisions of the pro-

cedural regulations for processing claims for disability

and other benefits under Title II of the Social Security

Act, 42 U.S.C. (& Supp. V) 401 et seqg., 20 C.F.R. Pt.

404, Subpt. J, are reproduced at App., infra, 110a-123a.

STATEMENT

On the merits, this class action concerns the evi-

dentiary principles applied by the Secretary of Health

and Human Services in determining whether a recipient

of disability benefits under Title II or Title XVI of the

Social Security Act (42 U.S.C. (& Supp. V) 401 ef seq.,

1381 et seq.) continues to be entitled to receive benefits.

However, the merits of the case are not now before the

1The regulations governing the processing of claims for dis-

ability benefits under the Supplemental Security Income (SSI) pro-

gram established by Title XVI of the Social Security Act (20

C.F.R. Pt. 416, Subpt. N) are essentially identical to those appli-

cable to Title II claims and therefore are not separately set out in

the Appendix.

Court. In this Petition, we seek review of the judgment

of the court of appeals insofar as it affirms the district

court’s exercise of jurisdiction with respect to certain of

the class members. Specifically, we submit that the dis-

trict court erred in ordering the Secretary to reopen

thousands of administrative decisions terminating dis-

ability benefits that had become final and binding before

this suit was filed when the claimants failed to seek fur-

ther review of those decisions within the 60-day period

allowed by the Social Security Act and implementing

regulations. The rulings of this Court leave no doubt

that the courts below lacked authority to resurrect these

stale claims.

A. The Statutory And Regulatory Framework

1. Titles If and XVI of the Social Security Act pro-

vide for the payment of disability benefits to a person

who, because of a physical or mental impairment, is un-

able to do his previous work or to “engage in any * * *

kind of substantial gainful work which exists in the na-

tional economy.” 42 U.S.C. 428(d) (2) (A), 1882¢(a)

(3) (B). An individual who is found to be disabled there-

after may continue to receive benefits only for as long

as his status continues to satisfy the statutory definition

of disability. 42 U.S.C. (& Supp. V) 423(a) (1), 425;

20 C.F.R. 404.1594, 404.1597. Accordingly, Congress has

provided for the Secretary, at least once every three

years, to review the cases of individuals who previously

were found to be disabled under Title II in order to as-

certain whether they continue to be eligible for benefits.

42 U.S.C. (Supp. V) 421(h). The Secretary has pro-

vided for a parallel program of periodic review under

the Title XVI Supplemental Security Income (SSI) pro-

gram. When the individual’s case is reviewed, he bears

the burden of showing, “by means of ‘medically accept-

able clinical and laboratory diagnostic techniques,’ ” that

he continues to have a physical or mental impairment of

sufficient severity to satisfy the statutory standard of dis-

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

quoting 42 U.S.C. 423(d) (8).

2. “To facilitate the orderly and sympathetic admin-

istration of the disability program[s] * * *, the Secre-

tary and Congress have established an unusually protec-

tive * * * process for the review and adjudication of

disputed claims.” Heckler v. Day, No. 82-1871 (May 22,

1984), slip op. 2.

a. The initial determination whether a person receiv-

ing benefits is still disabled ordinarily is made by a state

agency, pursuant to regulations, guidelines, and perform-

ance standards established by the Secretary, through the

Social Security Administration (SSA). 42 U.S.C. (Supp.

V) 421(a) and 42 U.S.C. 1883b(a) ; 20 C.F.R. 404.1503,

416.903. The individual first is notified that his case has

been selected for review and is requested to furnish in-

formation about his current medical condition and the

identity of his treating physician. 20 C.F.R. 404.1593,

416.993. If the state agency then makes a tentative de-

termination that his disability has ceased, the individual

is given an advance written notice 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 deter-

mination. See Mathews v. Eldridge, 424 U.S. at 337-338.

b. If the state agency determines that an individual

receiving Title II disability benefits no longer is disabled,

he may request a de novo reconsideration. 20 C.F.R.

404.904, 404.907-404.921.2 Governing regulations pro-

vide—and the individual is explicitly notified—that re-

consideration must be requested within 60 days of his

receipt of the adverse initial determination. The initial

determination terminating benefits becomes binding upon

the claimant if he does not request reconsideration

within the stated time period. 20 C.F.R. 404.905, 404.909

(a) (1). Although the individual may request that the

2 Under amendments to the Act effective January 12, 1984, the

individual must be afforded an opportunity for a face-to-face evi-

dentiary hearing at the reconsideration stage. Pub. L. No. 97-455,

§ 4(a), 96 Stat. 2499, to be codified at 42 U.S.C. 405 (b) (2).

60-day period for seeking further review at this or any

other stage of the process be extended by SSA for good

cause (see, e.g., 20 C.F.R. 404.909(b)), the denial of

such a request is not subject to administrative or judicial

review. 20 C.F.R. 404.903(g), 416.1403 (a) (8).

ec. If the decision on reconsideration is adverse to the

claimant, the next step in the administrative review

process is an opportunity for an evidentiary hearing be-

fore an administrative law judge (ALJ) in SSA, as re-

quired by the Social Security Act itself. 42 U.S.C. (Supp.

V) 421(d); 20 C.F.R. 404.944-404.965.* The Social Se-

curity Act provides that an individual must request ar

ALJ hearing within 60 days (42 U.S.C. (Supp. V) 405

(b), 1883(c)(1)), and implementing regulations pro-

vide that the decision that his disability has ceased is

binding unless he requests an ALJ hearing within that

period. 20 C.F.R. 404.920(a), 404.921, 404.933(b),

416.1404 (b) (3), 416.1405, 416.1409 (a).

Because entitlement t> SSI 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 payment of benefits under

Title XVI will be continued, even after an adverse initial

determination, until the ALJ has rendered his decision.

20 C.F.R. 416.1336(b). By contrast, this Court held in

Mathews v. Eldridge that the Due Process Clause does

not require the Secretary to continue payment of dis-

ability benefits under Title II, which are not based on

need, until after the claimant has had an opportunity for

an ALJ hearing. 424 U.S. at 339-349. However, Con-

gress enacted temporary legislation in 1982 permitting

the claimant in a Title II disability termination case to

* The Secretary has omitted the reconsideration stage in SSI

termination cases under Title XVI of the Act, and the SSI recipient

therefore is entitled to the statutorily required ALJ hearing di-

rectly after receiving notice of an adverse initial determination.

42 U.S.C. (Supp. V) 1388(c) (1); 20 C.F.R. 416.1407, 416.1429-

416.1465.

elect to receive interim benefits pending receipt of the

ALJ’s decision, subject to recesspment if the ALJ affirms

the reconsideration decision that his disability has

ceased.* Although this temporary authorization has ex-

pired, bills have passed both Houses of Congress at the

time of the filing of this petition that would reinstitute

the Title II interim benefits authorization.®

d. If the decision by the ALJ after a hearing is ad-

verse to the claimant under either Title II or Title XVI,

he then may seek review by the Appeals Council in SSA.

20 C.F.R. 404.967-404.983, 416.1467-416.1483. The regu-

lations provide that if the claimant does not seek Appeals

Council review within 60 days or such further period as

the Secretary permits, the ALJ’s decision is. binding.

20 C.F.R. 404.955(a), 404.968(a) (1), 416.1455(a), 416-

1468.

e. Only after the Appeals Council has either denied

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

rendered its own decision on the merits, is the Secre-

tary 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) and 42 U.S.C. 1383(c) (8); 20 C.F.R. 404.900

(a) (5), 404.981, 416.1400(a) (5), 416.1481. The Act

requires that judicial review be “commenced within sixty

4 Pub. L. No. 97-455, § 2, 96 Stat. 2498, to be codified at 42 U.S.C.

423(g). The temporary authorization (as briefly extended 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 was authorized to continue to pay benefits in such cases

through June 1984 or until the ALJ rendered his decision, which-

ever occurred first.

5 See Section 203 of H.R. 3755, 98th Cong., 2d Sess., as passed by

the House of Representatives on March 27, 1984 (130 Cong. Rec.

H1986 (daily ed.)), and Section 5 of H.R. 3755, 98th Cong., 2d

Sess., as passed by the Senate on May 22, 1984 (130 Cong. Rec.

$6203 (daily ed.) ).

ai oad Rane MINOT SAY PTB Pare Bt ah ce

days after the mailing to [the claimant] of notice” of

the final decision or final determination, “or within such

further time as the Secretary may allow.” 42 U.S.C.

(Supp. V) 405(g). If judicial review is not sought with-

in this time period, the Appeals Council’s decision (or the

ALJ’s decision, if the Appeals Council denied review) is

binding upon the claimant. 20 C.F.R. 404.981, 404.982,

416.1481, 416.1482.

f. Although, as we have seen, an adverse decision at

any step of the administrative process becomes final and

binding upon the claimant if he does not seek further

review within the 60 days allowed, the Secretary has pro-

vided by regulation that such a decision may be reopened

within 12 months for any reason, within two or four

years for good cause, and at any time if the decision was

obtained by fraud or similar fault. 20 C.F.R. 404.987,

404.988, 404.989, 416.1487, 416.1488, 416.1489. However,

a denial of a request to reopen is not subject to admin-

istrative or judicial review. 20 C.F.R. 404.903(I),

416.1403(a) (5). See Califano v. Sanders, 430 U.S. 99,

108 (1977).

B. The Proceedings in this Case

1. This action was filed in the United States District

Court for the Central District of California on February

4, 1983, by 20 named disability claimants and 14 orga-

nizational plaintiffs. They contended that the Secretary

may not terminate the payment of disability benefits un-

der Title II and Title XVI of the Social Security Act to

individuals who a state agency or SSA has determined

are not currently disabled unless the state agency or SSA

also produces evidence that the person’s medical condition

has improved over what it was when he was found to be

disabled. Respondents maintained that the Secretary was

required to adopt a “medical improvement” prerequisite

to cessation of benefits under two decisions of the Ninth

Circuit (Finnegan v. Mathews, 641 F.2d 1340 (1981),

and Patti v. Schweiker, 669 F.2d 582 (1982)) and that

the Secretary’s failure to follow the result in those cases

when reviewing claims of other individuals violated con-

stitutional principles of separation of powers and due

process. E.R. 11-12, 17-20, 40-51.°

The Finnegan decision relied upon by respondents in

the complaint was an action for judicial review under 42

U.S.C. 405(g) by a “grandfatheree” who had been trans-

ferred to the federal SSI rolls from a state public assist-

ance plan when the SSI program was established in 1974.

The Secretary terminated the individual’s benefits on the

ground that he was not disabled within the meaning of

Title XVI of the Social Security Act. The Ninth Circuit

held, however, that benefits could not be terminated ab-

sent proof of either a material improvement in the in-

dividual’s medical condition demonstrating that he no

longer is disabled within the meaning of the state statute

or a showing of a clear and specific error during the

prior state determination. 641 F.2d at 1344-1347. The

eourt did not explain the basis of this conclusion, except

to assert that a showing of medical improvement “logi-

cally” was necessary. Id. at 1345. The Patti decision

relied upon by respondents in the complaint was an in-

dividual action under 42 U.S.C. 405(g) involving an SSI

claimant who was not a “grandfatheree.” The Ninth

Circuit acknowledged in Patti that the claimant bears the

burden in a disability termination case of proving that

he is currently disabled. But the court held that because

the claimant previously was found to be disabled, she was

entitled to a presumption that her condition had not

changed. Accordingly, the court concluded that the Sec-

retary must rebut that presumption by producing evi-

dence of improvement in the claimant’s medical condi-

tion. The court did not cite any provisions of the Social

Security Act as mandating such a presumption; the court

instead relied on its own view of appropriate evidentiary

burdens. 669 F.2d at 586-587.

On August 20, 1980—subsequent to the administrative

proceedings in which the individual claimants in Finne-

6“E.R.” refers to the Excerpts of Record filed in the court of

appeals.

gan and Patti were found not to be disabled, but before

the Ninth Circuit rendered its decisions in those cases—

the Social Security disability regulations were revised to

inake clear that an individual’s disability would be found

to have ceased when current evidence shows that he does

not meet the statutory definition of disability. The regu- —

lations stressed that it was not necessary for the Secre-

tary to find actual improvement in the individual’s

medical condition. 45 Fed. Reg. 55566 (1980). See 20

C.F.R. 404.1579, 404.1586, 404.1594, 416.994. See also

Social Security Ruling (SSR) 81-6, reproduced at App.,

infra, 92a-93a.

The Secretary’s new regulations were not invalidated

or even cited by the Ninth Circuit in Finnegan and

Patti. Accordingly, although the Secretary of course

complied with the judgments in Finnegan and Patti by

restoring benefits to the particular individuals involved

in those cases, the Secretary published rulings stating

that the decisions in Finnegan and Patti would not be

followed in administrative cases concerning other claim-

ants. See SSR 82-10c and SSR 82-49c, reproduced at

App., infra, 87a-9la. With regard to Finnegan, SSA

explained that many grandfatherees had been on the

state rolls for years prior to their conversion to the SSI

program and that the evidence on which they had been

found eligible might not be available. SSA reasoned that

in such circumstances it “could not possibly prove either

‘material improvement’ or ‘clear and specific error’ in the

prior State determination” and that it therefore was ap-

propriate to focus on current evidence of the claimant’s

condition (App., infra, 88a). With regard tc Patti, SSA

explained that the final administrative decision under re-

view by the Ninth Circuit in that case had been rendered

prior to issuance of the new regulations in August 1980,

“so that the court’s decision in Patti was based on an

administrative decision involving regulations no longer

in effect” (App., infra, 90a). “For these reasons (and

since there are other Court of Appeals decisions which

do not require a showing of improvement to terminate

disability benefits) ,” SSA concluded that ‘Patti does not

provide a judicial interpretation of the disability regula-

tions which should be followed” in cases involving other

claimants (id. at 91a).

2. The district court in the instant case certified a

plaintiffs’ ciass consisting of all persons who reside in

the states comprising the Ninth Circuit and who “(a)

receive or received Supplemental Security Income disabil-

ity benefits or Social Security disability insurance benefits

and have been or will be considered for termination after

August 30, 1981, or (b) receive or received Supplemental

Security Income disability benefits under the ‘grand-

father clause’ of the Social Security Act, 42 U.S.C.

§ 1882c(a) (8) (E), and have been or will be considered

for termination after August 25, 1980, such considera-

tion being or having been for the asserted reason that

the claimant’s disability had ceased” (App., infra, 99a).

The two dates were selected to be one year prior to the

dates on which the court of appeals’ decisions in Patti

and Finnegan, respectively, became final, because the Sec-

retary’s regulations provide that she may reopen an ad-

ministrative decision denying a claim for one year after

that decision became final (App., infra, 82a nn. 8, 9; see

20 C.F.R. 404.988, 416.1488).

The district court found a probability that respondents

would succeed on the merits of their argument that the

Secretary’s “nonacquiescence” in the Ninth Circuit’s de-

cisions in Patti and Finnegan violated due process and

principles of separation of powers (App., infra, 78a-80a).

The court therefore entered a “preliminary injunction”

prohibiting the Secretary, in adjudicating claims of class

members still actively pending on administrative review,

from failing to follow Patti and Finnegan and from im-

plementing the SSR adhering to her August 20, 1980

regulations (App., infra, 85a). In addition, in Para-

graph 4(c) of its order, the court instructed the Secre-

tary to notify each class member whose benefits had been

terminated at any time after August 25, 1980 or August

30, 1981, as applicable, that he or she “may apply for

Sins REE Le een -_ .

reinstatement of benefits if he or she believes that his or

her medical condition has not improved following the

granting of disability benefits” (App., infra, 86a). Upon

receipt of such an application, the Secretary was required

to reinstate the payment of benefits to the individual

pending a review of his or her case under the medical

improvement standard of Patti and Finnegan (ibid.).

3. The Secretary applied for a temporary stay of

Paragraph 4(c) of the district court’s order to delay the

sending of the notices until the court of appeals had an

opportunity to consider an application for a stay pend-

ing appeal. However, the court of appeals denied a tem-

porary stay (App., infra, 67a-72a), and the Secretary

sent notices on August 15, 1983 to 28,557 class members

whose benefits had been terminated (id. at 52a).7 The

court of appeals subsequently .denied the Secretary’s ap-

plication for a stay of Paragraph 4(c) pending appeal

(App., infra, 47a-66a).

On September 9, 1983, however, Justice Rehnquist

granted the Secretary’s application for a stay of Para-

graph 4(c) pending appeal, expressing serious doubts

that the district court had jurisdiction over the claims

of class members affected by Paragraph 4(c) or had au-

thority to order the payment of benefits to them pending

reopening and review of their cases. Heckler v. Lopez

(Lopez I), No. A-145. The full Court then denied re-

spondents’ motion to vacate that stay. Heckler v. Lopez

(Lopez II), No. A-145 (Oct. 11, 1983). Although Jus-

tice Stevens, joined by Justice Blackmun, dissented from

the Couri’s order in other respects, he agreed that Jus-

tice Rehnquist had properly entered a stay insofar as

Paragraph 4(c) applied to class members who had re-

ceived administrative decisions denying their claims for

benefits more than 60 days prior to the filing of this

7 See Affidavit (at 75) of Jean Hall Hinckley, Acting Deputy

Associate Commissioner, Office of Disability, Social Security Ad-

ministration, included as Attachment G to the Secretary’s Applica-

tion for a Stay Pending Certiorari filed in this Court on March 5,

1984.

suit on February 4, 1983 but who did not seek judicial

review within that 60-day period. Justice Stevens ob-

served that “[t]hese persons’ right to seek administra-

tive or judicial review of their termination decisions had

expired, and they could obtain benefits only by requesting

that the Secretary reopen their cases” (id., slip op. 3

(Stevens, J., concurring and dissenting) ). Justice Stevens

concluded that, under this Court’s decision in Califano V.

Sanders, 430 U.S. 99 (1977), “the District Court had no

jurisdiction to review the Secretary’s refusal to reopen

these cases” and “should not have granted them relief”

(Lopez II, slip op. 8). Justice Brennan, in a dissent

joined by Justice Marshall, did not disagree with Justice

Stevens’ legal analysis; he instead would have left the

preliminary injunction standing insofar as it applied to

these class members based on the court of appeals’ obser-

vation in denying a stay (App., infra, 64a) that the

Secretary might have waived the 60-day requirement by

failing to raise that issue in district court (Lopez II, slip

op. 3 ‘Brennan, J., dissenting) ).

3. In a decision rendered on February 22, 1984, the

court of appeals substantiaily affirmed the district court’s

preliminary injunction (App., infra, 1la-45a). Justice

Rehnquist and Justice Stevens had concluded in the pro-

ceedings on the stay that the Court should disregard

respondents’ characterization of their legal arguments as

“constitutional” in nature. Lopez I, slip op. 8 (Rehn-

quist, Circuit Justice) ; Lopez II, slip op. 6 (Stevens, J.,

concurring and dissenting). The court of appeals dis-

agreed, stating that respondents’ arguments “may pro-

perly be treated as constitutional for purposes of the

inquiry before us” (App., infra, 22a n.10). Against this

background, the court rejected the Secretary’s jurisdic-

tional arguments and her contention that the district

court was without authority to order the payment of

benefits pending reopening and review of closed cases.

a. First, although Justice Stevens and Justice Black-

mun had expressly concluded, and five other Justices had

implicitly agreed, that the district court had no jurisdic-

tion over the claims of class members who had received

binding decisions terminating their benefits more than 60

days before this suit was filed, the court of appeals held

that respondents were likely to succeed on their conten-

tions that the district court did have jurisdiction over

these claims (App., infra, 29a-36a).8 The court ac-

knowledged, contrary to its observation in denying a

stay pending appeal, that the Secretary in fact had

raised the 60-day limitations issue in district court,

and it also acknowledged that “[t]he traditional re-

quirements for equitable tolling of a statute of limita-

tions are not present here” (id. at 31a). But the court

explained its affirmance of the preliminary injunction

as to these class members by suggesting that the 60-day

limitations period might not apply where constitutional

issues are presented (id. at 3la-33a), that the 60-day

period may be “waived” by a court over the Secretary’s

objection (id. at 33a-34a), and that running of the 60-

day period might be “deemed tolled retroactively” for all

class members beginning on the date on which any class

representative first filed an administrative appeal (id.

at 36a). The court further held that even if the district

court was without authority to review the time-barred

claims under 42 U.S.C. 405(g), it nevertheless could re-

quire the Secretary to reopen those claims through the

exercise of mandamus jurisdiction under 28 U.S.C. 1361

(App., infra, 36a-38a).

b. With respect to other class members affected by

Paragraph 4(c) of the district court’s order, the court

of appeals dispensed with the requirement that they ex-

haust their administrative remedies before seeking judi-

cial review under -42 U.S.C. 405(g). Although the court

did not dispute the Secretary’s submission that many of

these class members might have their benefits reinstated

in the course of seeking further administrative review

8 Judge Boochever disagreed with the majority on this issue. He

concluded, for the reasons given by Justice Stevens, that the dis-

trict court had no jurisdiction under 42 U.S.C. 405(g) over such

claims (App., infra, 44a-45a).

of the denial of their claims, the court nevertheless found

jurisdiction on the basis of its conclusion that exhaustion

would be futile with regard to a particular issue—

whether the evidence should be reviewed under a medical

improvement standard—that might be raised in the ad-

ministrative proceedings (App., infra, 19a-22a). The

court also excused exhaustion on the ground that the “con-

stitutional” issues respondents raised were “collateral”

to their substantive claims for benefits (id. at 22a-26a).

ce. Finally, although Justice Rehnquist in granting a

stay had expressed “serious doubt,” which he believed

would be shared by other Members of the Court, whether

the district court’s order requiring the payment of in-

terim benefits was consistent with 42 U.S.C. 405(i) and

this Court’s decision in Schweiker v. Hansen, 450 U.S.

785 (1981) (Lopez I, slip op. 6-7, 9), the court of ap-

peals found this very argument to be “without merit”

(App., infra, 39a). In the court’s view, the ordering of

interim benefits was simply an exercise of the district

court’s “traditional equitable power” and “equitable dis-

cretion” (id. at 40a, 41a) that was not/barred by sover-

eign immunity (id. at 41a-42a).

d. The court of appeals did modify the preliminary in-

junction on the merits to eliminate relief for class mem-

bers who had received a final decision terminating their

benefits before the Ninth Circuit’s decisions in Finnegan

and Patti became final, because such claimants obviously

could not argue that the Secretary was required by the

Constitution to apply the reasoning of Finnegan and

Patti in their cases (App., infra, 16a-18a). However,

the court otherwise affirmed the preliminary injunction

“in all respects” (id. at 44a). SSA estimates that there

are 15,485 individuals who fall within the modified scope

of Paragraph 4(c) of the district court’s preliminary in-

junction. Affidavit 6, supra, note 7.

4. The Secretary then filed an application in this

Court for a stay of the judgment of the court of appeals

pending the filing and disposition of a petition for a writ

of certiorari. By order dated April 30, 1984, the Court

kee De

denied the Secreiary’s request insofar as it applied to

class members whose benefits were terminated on or after

December 6, 1982—60 days before this class action was

filed on February 4, 1983—or who completed the admin-

istrative appeal process on or after December 6, 1982.

However, the Court granted the application for a stay

insofar as it applied to all other respondents. Heckler v.

Lopez, No. A-707.

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision is flatly inconsistent

with this Court’s decisions concerning jurisdiction under

the Social Security Act. Heckler v. Ringer, No. 82-1772

(May 14, 1984); Califano v. Sanders, 480 U.S. 99

(1977) ; Weinberger v. Salfi, 422 U.S. 749 (1975). The

massive and peremptory judicial intrusion into the Sec-

retary’s administration of the Act countenanced by the

court below also threatens to make chaos of the “orderly

administrative mechanism” established by the Social Se-

curity Act and implementing regulations for the process-

ing of the millions of claims for benefits filed annually

with the Social Security Administration. Califano v.

Sanders, 430 U.S. at 102.

The most egregious error of the court of appeals was

its affirmance of the district court’s preliminary injunc-

tion ordering the Secretary to reopen thousands of ad-

ministrative decisions terminating disability benefits

that had become final and binding upon the claimants

before this class action was filed. That aspect of the

decision below is directly contrary to this Court’s hold-

ing in Califano v. Sanders. The Court, already has twice

granted stays of this portion of the district court’s pre-

liminary injunction: first by the order of Justice Rehn-

quist on September 9, 1983 that subsequently was sup-

ported by six other Members of the Court, and again on

April 30, 1984, when the Court unanimously granted a

stay of the judgment of the court of appeals to this ex-

tent. We now ask the Court to summarily reverse this

portion of the court of appeals’ judgment.®

1. a. The court of appeals’ conclusion that the district

court properly ordered the Secretary to reopen adverse

administrative decisions that had become binding upon

the claimants prior to the filing of this suit is flatly in-

consistent with this Court’s unanimous decision in Cali-

fano v. Sanders, 430 U.S. 99 (1977). In Sanders, the

Social Security claimant had exhausted his administra-

tive remedies and received an Appeals Council decision

denying his application for disability benefits. After the

60-day period for seeking review of the Appeals Council

decision had expired, the claimant sought to reopen that

decision for the purpose of proving his eligibility for

benefits. This Court held that 42 U.S.C. 405(g) did not

authorize judicial review of the Secretary’s denial of the

request to reopen.

The Court noted that Section 405(g) “limits judicial

review to a particular type of agency action, a ‘final

decision of the Secretary made after a hearing’” (430

U.S. at 108, quoting 42 U.S.C. 405(g)). The Court then

explained that a petition to reopen a prior decision may

be denied without a hearing as provided in 42 U.S.C.

405(b), and “[i]ndeed, the opportunity to recpen final

decisions * * * [is] afforded by the Secretary’s regula-

tions and not by the Social Security Act” (430 U. s. at

108). The Court continued (7bid.) :

Moreover, an interpretation that would allow a

claimant judicial review simply by filing—and being

denied—a petition to reopen his claim would frus-

trate the vongressional purpose, plainly evidenced in

§ 405(g), to impose a 60-day limitation upon judi-

cial review of the Secretary’s final decision on the

® We believe that the court of appeals also clearly erred in affirm-

ing the district court’s exercise of jurisdiction over the claims of

other class members who had not exhausted their administrative

remedies. See Heckler v. Ringer, supra. However, because of pend-

ing legislation and other factors, we have elected not to seek review

on that issue at this time. See note 18, infra.

initial claim for benefits. 20 C.F.R. § 404.951

(1976). Congress’ determination so to limit judicial

review to the original decision denying benefits is

a policy choice obviously designed to forestall repeti-

tive or belated litigation of stale eligibility claims.

Our duty, of course, is to respect that choice.

As we explain below, the court of appeals’ decision in

this case plainly does not “respect that choice.”

b. In this petition, we challenge the judgment of the

court of appeals insofar as it affirms the district court’s

exercise of jurisdiction over the claims of individuals

who had received an adverse administrative decision and

for whom the 60-day period within which to seek review

of that decision had expired before this class action was

filed on February 4, 1983. This group logically falls into

two subgroups:

(i) The first subgroup is comprised of persons who

fully exhausted their administrative remedies through

the Appeals Council stage prior to the filing of this class

action and thereby obtained a “final decision” of the

Secretary, but failed to seek judicial review of that final

decision within the 60-day period prescribed by Congress

in 42 U.S.C. 405(g). This Court has made clear that the

membership of a class in a class action brought under

42 U.S.C. 405(g) must be limited to individuals who per-

sonally satisfy the requirements for obtaining judicial

review under that Section. Califano v. Yamasaki, 442

U.S. 682, 701 (1979). Under Califano v. Sanders, the

district court would not have had jurisdiction under 42

U.S.C. 405(g) to review the Secretary’s final decision if

an individual claimant had personally commenced an ac-

tion for judicial review more than 60 days after that

decision. It follows that the district court likewise did

not have jurisdiction in this class action to grant relief

to any individual if the commencement of the action on

February 4, 1983 was more than 60 days after the Secre-

tary’s final decision denying his claim for benefits—i.e.,

if the final decision was rendered before December 6,

1982. Lopez II, slip op. 3 (Stevens, J., concurring and

dissenting).

(ii) The other subgroup at issue here is comprised of

persons who, prior to the filing of this class action, had

received an adverse administrative decision short of the

Appeals Council stage but failed to seek further adminis-

trative review within 60 days. The failure of these in-

dividuals to seek further administrative review within

that period is not addressed by 42 U.S.C. 405(g). How-

ever, 42 U.S.C. (Supp. V) 405(b) and 1383(c) (1) re

quire a claimant to request an ALJ hearing within 60

days. In addition, the Secretary’s regulations impose an

identical 60-day time limit for seeking further adminis-

trative review at each step of the process and provide

that the adverse decision will be binding upon the claim-

ant unless he requests review within 60 days (or such

further time as the Secretary allows in a particular

case). See pages 4-6, supra. Those regulations must be

sustained unless they exceed the Secretary’s authority

or are arbitrary and capricious. Heckler v. Campbell,

No. 81-1983 (May 16, 1983), slip op. 7-8. They clearly

do not suffer from either defect.

Regulatory provisions imposing time limits on each

stage of the administrative process, and providing that

an adverse decision at any level is binding on the claim-

ant if he does not seek further review within the time al-

lowed, have been in effect since 1940.%° Such provisions

also’ were in effect when Congress enacted the Title II

disability program in 1954 and 1956 and the SSI pro-

gram in 1972. Congress’s integration of the disability

and SSI programs into this established administrative

105 Fed. Reg. 4169, 4171-4174 (1940), adding 20 C.F.R. 403.706

(c), 403.708(b), 403.708(g), 403.709(b), 403.709(1), 403.719(b),

403.710(e).

11 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. 408.706 (c), 403.708 (b), 403.708 (g), 403.709 (b),

403.709 (1), 408.710(b), 403.710(e) (1954 and 1956).

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

III, 86 Stat. 1465 et seq. See 20 C.F.R. 404.908, 404.911, 404.916,

404.918, 404.940, 404.946, 404.951 (1972).

framework must be viewed as a ratification of these ex-

isting procedural provisions and an expression of con-

gressional intent that they should apply with full force

to the disability and SSI programs. See Haig v. Agee,

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

U.S. 575, 580-581 (1978). The district court’s order re-

quiring the reopening of binding administrative decisions

frustrates the clearly established policy of repose em-

bodied in the Secretary’s regulations.

Moreover, the individuals in this second subgroup not

only failed to seek further administrative review of an

adverse decision within 60 days; they also failed to seek

judicial review within that period. As noted above (see

pages 13-14, supra), the court of appeals held that it was

not necessary for class members to exhaust their ad-

ministrative remedies in order to seek judicial review of

the Secretary’s failure to apply a medical improvement

standard in her on-going review of their claims. For the

reasons stated in the margin, we Wbelieve that this hold-

ing was clearly incorrect.* But assuming arguendo that

13 A denial of a claim for benefits at the initial determination,

reconsideration, or ALJ hearing stage is “interlocutory” (Mathews

v. Diaz, 426 U.S. 67, 73 (1976)); it is not a “final decision” in the

sense that it is an administrative “judgment” that terminates the

proceedings, conclusively rejects the claim for benefits, and disposes

of all issues having a bearing on the matter. Compare Cobbledick

v. United States, 309 U.S. 323, 324-326 (1940). Under the Secre-

tary’s regulations, only a decision by the Appeals Council terminates

the administrative proceedings and represents the Secretary’s final

determination. See Heckler v. Ringer, slip op. 2-3 & n.2. The

Court in Salfi held that a court may not dispense with the re-

quirement that the claimant exhaust his administrative remedies

through the Appeals Council stage based on its own assessment that

exhaustion would be futile. 422 U.S. at 766. Exhaustion could not

be regarded as futile here in any event because, as the court of ap-

peals acknowledged (App., infra, 20a), class members might obtain

payment on their claims for benefits in administrative proceedings

even if a medical improvement standard is not applied, and the

claim might be denied for reasons having nothing to do with that

standard. Heckler v. Ringer, slip op. 14-16 & n.12. Even the dis-

senting Justices in Ringer agreed that exhaustion is required where,

the court of appeals properly dispensed with the exhaus-

tion requirement, the class members necessarily would be

subject to the 60-day limitation prescribed in 42 U.S.C.

405(g) if they attempted to obtain immediate judicial

review. Because the class members in the second sub-

group did not seek judicial review within 60 days, the

district court plainly had no authority under Califano V.

Sanders to review those decisions in this class action even

if the court of appeals were correct in excusing full

exhaustion of administrative remedies.

as here, payment of the claim for benefits is not foreclosed at the

administrative level. Slip op. 2, 12-13 (Stevens, J., dissenting).

The court of appeals erroneously focused not on the finality of

the decision disposing of the claim for benefits, but on what it

perceived to be the Secretary’s position on one issue that might

ultimately have a bearing on that decision—i.e., whether the evi-

dence should be reviewed under a medical improvement standard.

But Section 405(g) does not provide for judicial review of the Sec-

retary’s position on “issues” as such; it provides for review only of

final decisions on claims for benefits.

The court of appeals also thought that judicial review was avail-

able under 42 U.S.C. 405(g) because the issue regarding the appli-

cation of the medical improvement standard required by Patti

and Finnegan was “entirely collateral” to the substantive claim for

benefits under Mathews v. Eldridge, 424 U.S. at 330-332. See App.,

infra, 22a-26a. But the evidentiary standards to be applied in re-

viewing a claim for benefits go to the very heart of the determina-

tion of the merits of the claim. Compare Heckler v. Ringer, slip op.

10-12, 14-15; Lopez I, slip op. 8-9 (Rehnquist, Circuit Justice).

That issue is not rendered “collateral” merely because respondents

contend that constitutional principles of separation of powers and

due process require application of a particular evidentiary standard

by virtue of the prior decisions in Patti and Finnegan. See Heckler

v. Ringer, slip op. 14-15.

Nor have respondents made any showing of irreparable injury

resulting from the Secretary’s disposition of the assertedly “col-

lateral” issue that is distinct from the injury that could result from

any erroneous denial of benefits at a preliminary stage of the ad-

ministrative process. See Heckler v. Ringer, slip op. 14-15; Mathews

v. Eldridge, 424 U.S. at 331-332. Congress determined in establish-

ing the administrative review mechanism that a retroactive award

of benefits at a later date is an adequate statutory remedy for an

erroneous denial of a claim for benefits at a preliminary stage of

the review process. Cf. Heckler v. Ringer, slip op. 23-24.

e. The court of appeals’ decision cannot be squared

with Califano v. Sanders for another reason as well. In

Sanders, the individual claimant actually had requested

that SSA reopen the prior decision denying his claim for

disability benefits (430 U.S. at 102-103). Here, by con-

trast, there is no indication that any of the thousands of

class members who allowed the decision terminating his

benefits to become binding before this suit was filed later

requested the Secretary to reopen that decision. Even

assuming that a district court would have jurisdiction

to order the Secretary to reopen a prior decision, not-

withstanding the contrary holding in Califano v. Sanders,

at the very least the claimant would be required to file

a request with the Secretary before asking a court to

intervene. If the claimant did not do so, there would be

no “decision” whatever by the Secretary on the reopening

issue, much less a “final decision” that could be subject

to judicial review under 42 U.S.C. 405(g). See e.g.,

Weinberger Vv. Salfi, 422 U.S. at 764; Califano v. Yama-

saki, 442 U.S. at 704.

The district court’s exercise of jurisdiction over these

closed administrative cases instead was undertaken at

the request of the handful of named plaintiffs in this

case. However, the 20 individuals named as plaintiffs

clearly have no standing to request that the Secretary or

a court reopen a decision pertaining to other claimants

who have not initiated the reopening process. In fact,

the Secretary’s regulations expressly provide that re-

opening may be requested only by a person who was a

party to the prior decision. 20 C.F.R. 404.987, 416.1487.

Similarly, 42 U.S.C. 405(g) provides that judicial review

of a final decision of the Secretary is available only to

an individual who was a “party” to the administrative

hearing on the claim. See also 42 U.S.C. (Supp. V)

405(g) and 1383(c). A fortiori the 14 organizations

that also were named as plaintiffs in district court have

no standing to seek the reopening of prior decisions af-

fecting individual claimants. The court of appeals’ deci-

sion in this case therefore signals a wholly unwarranted

expansion of the scope of administrative and judicial

review under the Social Security Act.

2. Notwithstanding this Court’s decision in Califano

v. Sanders and the view of seven Members of the Court

in this very case that the district court had no jurisdic-

tion over the claims of class members at issue here, the

court of appeals held that respondents were likely to

prevail on their argument that the district court did

have jurisdiction over those claims (App., infra, 36a).

The court of appeals offered three novel theories to sup-

port its erroneous conclusion.

a. The court of appeals first suggested that the 60-

day limitation in 42 U.S.C. 405(g) for seeking judicial

review does not apply where the claimant raises a con-

stitutional issue (App., infra, 3la-33a). As an initial

matter, it is doubtful that respondents’ challenge to the

sufficiency of the Secretary’s evidentiary showings in dis-

ability termination cases is constitutional in nature. See

Lopez I, slip op. 8-9 (Rehnquist, Circuit Justice) ; Lopez

II, slip op. 6 (Stevens, J., concurring and dissenting).

As we explain more fully in our Application for a Stay

Pending Certiorari (at 14-17), filed on March 5, 1984,

respondents’ argument at bottom is simply an assertion

of nonmutual collateral estoppel, which is not a constitu-

tionally based doctrine (and which the Court unani-

mously refused to apply against the government in

United States v. Mendoza, No. 82-849 (Jan. 10, 1984) ).

In any event, nothing in this Court’s decisions supports

the notion that the 60-day limit in 42 U.S.C. 405(g) is

inapplicable in cases raising constitutional issues. To the

contrary, in Weinberger v. Salfi the Court clearly indi-

cated that the 60-day limit did apply to the constitutional

question presented; the Court observed only that the Sec-

retary had waived any objection on the ground by failing

to raise it in district court. 422 U.S. at 763-764, citing

Fed. R. Civ. P. 8(c). Moreover, the plain language of

Section 405(g), which provides that an action for judi-

cial review must be commenced within 60 days of “any”

final decision of the Secretary, does not suggest an im-

plied exception for final decisions raising constitutional

issues. Similarly, the second sentence of Section 405(h),

which provides that “[n]o findings of fact or decision

of the Secretary shall be reviewed by any * * * tribu-

nal * * * except as herein provided”—.e., except as

provided in Section 405(g)—-would appear to require

compliance in all instances with the time limitations pre-

scribed in that Section.

The court of appeals also suggested that 60 days may

not afford a constitutionally sufficient time within which

to commence a civil action raising constitutional issues

and that 42 U.S.C. 405(g) therefore should be construed

to make the 60-day limit inapplicable in that setting in

order to avoid a possible constitutional defect (App.,

infra, 32a-33a). This contention is without merit as well.

The court of appeals cited no authority for the proposi-

tion that Congress may not insist upon enforcement of

the generally applicable 60-day limitation in those cases

in which the claimant may choose to raise a constitu-

tional argument. Nor is there any reason to believe that

the 60-day limit erects “an unduly burdensome proce-

dural obstacle,” as the court of appeals believed (App.,

infra, 33a). The claimant already has been involved in

adjudicatory proceedings concerning his benefit claim;

the 60-day period is simply a condition upon his con-

tinuing that adjudicatory process on judicial review.

Furthermore, because judicial review under 42 U.S.C.

405(g) is based on the record already developed in the

administrative proceedings, there is no need for the

claimant to make a time-consuming factual investigation

before filing his complaint in court."

14 The court of appeals did not purport to find that the 60-day

period was actually insufficient as applied to any of the individual

named plaintiffs. And insofar as the unnamed class members are

concerned, there is no indication that any were even contemplating

seeking judicial review, much less that they intended to raise a

constitutional argument.

Most importantly, however, if the 60-day period in fact

proves to be insufficient in a particular case, Section 405

(g) and implementing regulations expressly allow the

Secretary to extend that period. 20 C.F.R. 404.982,

416.1482. There is no indication that any of the class

members requested such an extension. But the existence

of that flexibility entirely undermines the court of ap-

peals’ contention that the 60-day limit in 42 U.S.C. 405

(g) raises constitutional difficulties as applied to cases

raising constitutional issues.

The court of appeals asserted in addition that even if

the 60-day period is adequate where constitutional issues

are raised on judicial review following full exhaustion

of administrative remedies, that period might be in-

adequate where such issues are raised in a case in which

the court has excused full exhaustion (App., infra, 32a-

33a). This argument is pure bootstrap: because the

court of appeals chose to disregard the exhaustion of ad-

ministrative remedies that is mandated by the Act, im-

plementing regulations, and this Court’s decisions (see

note 18, supra), it also should disregard the statute of

limitations. What is more, the court’s analysis makes no

sense: the view that the 60 days provided in 42 U.S.C.

405(g) is insufficient to marshal constitutional argu-

ments is inconsistent with the court’s holding that ex-

haustion should be excused because of the claimants’

need to present the medical improvement and nonacquies-

cence issues to a court without delay.*

b. The court of appeals next suggested that the 60-

day limitations period could be “waived” by a court even

over the Secretary’s objection because, in the court’s

15 If the hypothetical claimants about whom the court of appeals

speculated did not have time to prepare their constitutional argu-

ments for presentation to the court, they could have continued to

pursue their administrative remedies for the time being or re-

quested an extension of time to file an action in court. In fact, of

course, the claimants involved here did neither. The most reason-

able inference is that they were prepared, for whatever reason, to

allow the preliminary decisions terminating their benefits to become

final and binding.

view, the Secretary has acted in bad faith in declining to

follow Patti and Finnegan, and the interest in adminis-

trative efficiency therefore “should give way to the claim-

ants’ interest in adequately preparing their cases” for

judicial review (App., infra, 33a-34a). This argument

is seriously flawed in a number of respects. First, the

court of appeals’ assertion of bad faith on the part of

the Secretary—unsupported by any evidence or findings

to that effect—is wholly unwarranted and, in our view,

fails to accord the respect due a coordinate Branch. The

Secretary’s response to Patti and Finnegan in light of

the intervening regulations not addressed by those deci-

sions (see pages 8-10, supra) in fact was entirely reason-

able. Cf. United States v. Morton, No. 83-916 (June 19,

1984), slip op. 13-14 & n.21. Moreover, even if this

Court ultimately were to sustain the court of appeals’

view that the Secretary is required to follow the deci-

sions of courts of appeals when reviewing claims filed by

other persons, this Court’s decisions in United States v.

Mendoza and United States v. Estate of Donnelly, 397

U.S. 286, 294-295 (1970), at the very least furnish a

substantial basis on which the Secretary today can in

good faith take a contrary view. By the same token,

there is not the slightest indication that any of the thou-

sands of individuals whose cases the district court or-

dered reopened were actually “preparing their cases” for

litigation during the period prior to the filing of this

class action, as the court of appeals speculated (App.,

infra, 34a). For all that appears, these individuals sim-

ply abandoned their claims altogether after receiving an

adverse administrative decision.

Putting these considerations to one side, however, a

court may not disregard the 60-day limitation Congress

has prescribed in 42 U.S.C. 405(g) based on its own

view of the relative equities of the Secretary’s litigating

position. See Utah Power & Light Co. v. United States,

243 U.S. 389, 407 (1917). “[T]he United States, as

sovereign, ‘is immune from suit save as it consents to be

sued . . . and the terms of its consent to be sued in

any court define that, court’s jurisdiction to entertain

the suit.” Lehman v. Nakshian, 453 U.S. 156, 160

(1981), quoting United States v. Testan, 424 U.S. 382,

399 (1976), and United States v. Sherwood, 312 U.S.

584, 586 (1941). The requirement that an action for

judicial review be commenced within 60 days is an ex-

plicit condition upon which Congress consented to suits

under the Social Security Act (Hunt v. Schweiker, 685

F.2d 121 (4th Cir. 1983); see United States v. Kubrick,

444 U.S. 111, 117-118 (1979) ), and a court therefore has

no authority to proceed where that condition has not

been met.

ce. Finally, the court of appeals asserted that even if

the 60-day limitations period applied, it might be “deemed

tolled retroactively” for all unnamed class members from

the date on which any class representative first filed an

administrative appeal. This is perhaps the most extra-

ordinary of the court’s many imaginative grounds for

nullifying the 60-day limit Congress has prescribed, be-

cause it would result in a wholesale abandonment of the

limitations period whenever a common question of law is

present in a number of claims—a frequent occurrence in

the administration of the Social Security Act. Section

405(g) furnishes no basis for judicial fashioning of such

a tolling rule. To the contrary, its express provision for

the Secretary to extend the filing period in appropriate

circumstances strongly indicates that a court cannot

fashion additional tolling principles that Congress has

not authorized. Soriano v. United States, 352 U.S. 270,

275-276 (1957). “Congress was entitled to assume that

the limitations period it prescribed meant just that and

no more.” Jd. at 276.*

16The court of appeals’ reliance on class action principles in

Title VII cases (App., infra, 34a-36a) is wholly misplaced. Under

Title VII, it is not necessary for each class member to file a charge

3. The court of appeais also held that even if the dis-

trict court was barred from exercising jurisdiction under

42 U.S.C. 405(g) to order the reopening of time-barred

claims, the court could accomplish precisely the same

result simply by resorting to mandamus jurisdiction un-

der 28 U.S.C. 1361. This holding, if accepted, would ef-

fectively nullify the limitations Congress deliberately pre-

scribed in the special statutory review procedure it estab-

lished. As we argued in Heckler v. Ringer (Pet. Br. 32-

36; Pet. Reply Br. 16-20), Congress recognized as much

in 1939, when it enacted 42 U.S.C. 405 and precluded

such circumvention.

The second sentence of Section 205(h) of the Social

Security Act, codified at 42 U.S.C. 405(h), provides that

no decision of the Secretary shall be subject to review by

any “tribunal * * * except as herein provided”—.e.,

except pursuant to 42 U.S.C. 405(g)—and the legislative

history shows that Congress meant exactly what it said.

S. Rep. 734, 76th Cong., 1st Sess. 52 (1939); H.R. Rep.

728, 76th Cong., 1st Sess. 43-44 (1939). This language

bars review by a judicial tribunal in a mandamus action

under 28 U.S.C. 1361 or by any other means except pur-

suant to 42 U.S.C. 405(g).

In addition, the third sentence of Section 205(h) of the

Act, as enacted and still in effect, provides that “[n]Jo

_ action” to recover on any claim arising under the Act

shall be brought “under section 41 of title 28” of the

United States Code.’7 This sentence also clearly precludes

with the EEOC. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414

n.8 (1975). Under the Social Security Act, on the other hand, each

individual member of a class must file a claim for benefits. Wein-

berger V. Salfi, 422 U.S. at 764. When he does so, the time limita-

tion and other requirements of the Act and implementing regula-

tions apply to the ensuing administrative and judicial review of

that individual claim and leave no room for the tolling notions the

court of appeals advanced.

17 In the 1976 edition of Title 42 of the United States Code, the

phrase “under sections 1331 or 1346 of title 28” was substituted for

“under section 41 of title 28.” See 42 U.S.C. 405 note, at 518. The

the exercise of mandamus jurisdiction. As this Court ob-

served in Salfi, “[a]t the time § 405(h) was enacted, and

prior to the 1948 recodification of Title 28, § 41 contained

all of that title’s grants of jurisdiction to United States

district court, save for several special-purpose jurisdic-

tional grants * * *” (422 U.S. at 756 n.3). In the 1948

recodification, these general grants of jurisdiction were

carried forward en bloc in what is now Chapter 85 of

Title 28, which, like its predecessor, is entitled: “District

Courts; Jurisdiction.” When Congress enacted the gen-

eral grant of mandamus jurisdiction in 1962, it specified

that the new mandamus provision was to be included in

“chapter 85 of title 28 of the United States Code” (Act

of Oct. 5, 1962, Pub. L. No. 87-748, 76 Stat. 744). By

this enactment, Congress deliberately placed 28 U.S.C.

1361 within the chapter that is the present-day codifica-

tion of the prior Section 41 of Title 28. Congress thereby

squarely placed mandamus actions under 28 U.S.C. 1361

among the suits that are barred by the “sweeping” pre-

clusion of review in the third sentence of 42 U.S.C. 405

(h). Salfi, 422 U.S. at 757.

In any event, even if the exercise of mandamus juris-

diction is not completely barred by 42 U.S.C. 405(h),

mandamus relief nevertheless is available under 28 U.S.C.

1361 only if the plaintiff has no other adequate remedy

and “only if the defendant owes him a clear nondiscre-

tionary duty.” Heckler v. Ringer, slip op. 18. The re-

spondents whose claims are at issue here satisfy neither

of these tests. They had a fully adequate remedy under

42 U.S.C. 405(g) but failed to pursue it within the time

allowed. Moreover, the Secretary does not owe these re-

spondents a clear nondiscretionary duty to reopen the

prior decisions denying their claims for benefits. The

Social Security Act itself does not even furnish a right

codifiers’ “choice, ‘made * * * without the approval of Congress

* * * should be given no weight.’” North Dakota v. United States,

No. 81-773 (Mar. 7, 1983), slip op. 10 n.13, quoting United States v.

Welden, 377 U.S. 95, 99 n.4 (1964).

to request reopening (Califano v. Sanders, 430 U.S. at

108), and the Secretary’s decision whether to reopen is

discretionary under her regulations. Heckler v. Ringer,

slip op. 13.

CONCLUSION

The petition for a writ of certiorari should be granted.

The judgment of the court of appeals should be reversed

insofar as it affirms the application of Paragraph 4(c)

of the di.trict court’s preliminary injunction to class

members who received an adverse administrative decision

prior to December 6, 1982, and did not seek further ad-

ministrative or judicial review of that decision within

60 days.** The Court may wish to consider summary

reversal.

78 Although we believe that the court of appeals erred in dis-

pensing with the exhaustion requirement for other class members

whose individual claims for benefits had not been denied in a bind-

ing fashion before this suit was filed (see note 13, swpra), we have

not sought review on that issue at this time. Both Houses of Con-

gress have passed a bill that would institute a variant of a medical

improvement standard in future disability cases and would also

apply that new standard to cases pending on administrative review.

See Section 101 of H.R. 3755, supra, as passed by the House of Rep-

resentatives, and Section 2 of H.R. 3755, supra, as passed by the

Senate, supra, note 5. The exhaustion issue therefore should not be

of continuing importance in the medical improvement context.

Moreover, in light of the Court’s recent decision in Heckler v. Rinyer

reiterating the exhaustion principles enunciated in Weinberger V.

Salfi, we are reluctant to ask the Court to address these issues once

again before the lower courts have had an opportunity to apply the

holding in Ringer. We note in this regard that the district court’s

order—despite its mandatory and sweeping character—is a prelimi-

nary injunction (App., infra, 2a, 48a, 78a, 88a n.10). The Secre-

tary therefore remains free to request the district court to recon-

sider the exhaustion and jurisdictional issues in light of this

Court’s decision in Ringer should it be necessary to do so.

Respectfully submitted.