# Opposition Brief — Bowen v. Hyatt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 820

## Text

P OR EI BS:
aa

CLERK

Supreme Court, U.S.
FILED

UN 26 1987

NIOL, JR,

7

5

No. 86-1861 0)
IN THE

Supreme Court of the Wnited States
OCTOBER TERM, 1986

Otis R. BOWEN, SECRETARY OF
THE UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,

Petitioner,
Vv.
PATRICK M. HYATT, HERMAN O. CAUDLE and

MARY P. LOVINGOOD, on behalf of themselves
and all others similarly situated,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN R. WESTER CHARLES MCBRAYER SASSER
(Counsel of Record) LEGAL SERVICES OF
DAN T. COENEN SOUTHERN PIEDMONT, INC.

ROBINSON, BRADSHAW _ Suite 600-East Independence
& HINSON, P.A. Plaza

1900 Independence Center 700 East Stonewall Street
Charlotte, North Carolina Charlotte, North Carolina
28246 28202

(704) 377-2536 (704) 376-1608

Attorneys for Respondents

QUESTIONS PRESENTED

This case, previously before
this Court in No. 85-474, was the subject
thi remand order of June 9,

his Court's
1986 to the Fourth Circuit in light of
Bowen vy. City of New York, 106 S. Ct. 2022
(1986). The questions presented are

Le Whether the Fourth Circuit
erred in following this Court's instruc-
tions to apply the jurisdictional guide-
lines articulated in City of New York to th
particular facts of this case.

Zs Whether the Fourth Circuit
erred in upholding the District Court's
award of attorneys' fees premised on
findings from trial evidence that

Petitioner had adopted and followed a
purposeful policy to disregard Fourth
Circuit decisions if in conflict with
Petitioner's policy rulings.

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED... ccccccececee 1
TABLE OF AUTHORITIES... cccccccces ia
STATEMENT... ccccccccccsesesessesneen 1
A. The Procedural Background
Of this CaS@uwes sr vacsesasene 1
B. The Decision in City of
New YOrK.cccsccasccscececs 8
C. The Fourth Circuit's :
Decision on Remand........ 12 )
D. The Polaski CaS@....c.eeeeees 17
DISCUSSION. o0.< 5 oi0sat0ck b4aee van eas 18
CONGCIAIG ION. .0ccceckccducceeenaauuas 48

TABLE OF AUTHORITIES

Allegheny General Hospital v.
NLRB, 608 F.2d 965
(pn se OE os | a

Beverly-Enters. v. NLRB
4a? F.2G 591 (6th Cir.
A ne a

Bowen v. City of New York,
106 S. Ct.. 2022
ee Ae ee a ae ee ee

Bowen v. Yuckert,
No. 85-1409
Cues, Utte Oe LEST) ics cccccscs

City of New York v. Heckler,
578 F. Supp. 1109 (1984),
aff'd. 742 F.2d 729
(2d Cir. 1984), aff'd
Ree See) BOGS C906) ks cess

Dotson v. Schweiker,
719 F.2d 80 (4th Cir.
A a

Elrod v. Suran,
ew Seams LAOO (1964). cc cs esc

Flores v. HEW, 228 F. Supp.
ee WO. 1668) 666i ce csc awes

“i si+

26

26

35,

9,

36

10

10

Foster v. Heckler,
780 F.2d 1125 (4th Cir.
bo ee eee ee eae ee eee 38,

Heckler v. Lopez,
466 U.S. 955 (1984)... eee 27

Heckler v. Lopez,
463 U.S. 1328, motion to
vacate stay denied,
464 U.S. 879 (1983), stay
granted in part and denied
in part, 466 U.S. 955
Oo TO PPPerrererrrreereroLee ee 27

Heckler v. Ringer,
104 S. Ct. 2013 (1984)..... eee Sy

Hollaway v. Valley,
464 U.S. 914 (1983)... eeeee 40

Hunt v. Schweiker,
685 F.2d 121 (4th Cir.
LOOE) 6 06 66'4-4:4 6.6. 609528 50 4G 488s 6

Hyatt v. Heckler,
757 F.2d 1455 (1985)... 13

Hyatt v. Heckley,
579 F. Supp. 985 (1984)....... 13,

ITT World Communications,
Inc. v. FCC, 635 F.2d 32,
f. Bes 6 oe. ere ae ee 26

Ithaca College v. NLRB,
623 F.2€ 224 (2d Cir.),
cert. denied, 499 U.S. 975
Bh 3 eee eee ee oe ee eee eee 26

-iv-

39

30

ES OPED”

Page
Jones & Laughlin Steei
Corp. v. Marshall,
636 F.2d 32 (3rd Cir.
LDPE PCT Tererer heen ceaes «20
Kosher v. Stamatis,
566 G. Ct, 1555 CICS) on cos cee ae ees 40
Lopez v. Heckler,
725 F.2d 1489 (9th Cir.)
vacated and remanded on
other grounds, 469 U.S. 1082
(1964). cocncscasseusias teeenee) aos
29
Martin v. Secretary of H.E.W.,
492 F.2d 905 (4th Cir.
oye } Pee eer eee eoeeeeeee oeeevee 3,
34,
Mary Thompson Hospital, Inc. v.
NLRB,
621 F.2d 858 (7th Cir.
eee3#e#ee#esesee 26

1980). cc cccccce

Myers v. Califano,
611 F.2d 980 (4th Cir.

ot peer re ee aces ‘
34,

Pierce v. Underwood,
No. 86-1512 cert. granted,

aE ee eer

¢

Polaski v. Heckler,

804 F.2d 456 (1986),

cert. denied, No. 86-1617

(June 16, 1987) ccccccecscccsess 4, 17
is, 2i
22, 23%
31, 40,
43, 44,
45, 46,

Polaski v. Heckler,
739 F.2d 1320
(GR Cif. ISSE) ccccccssceeseus 37

Rivera v. Heckler,
568 F. Supp. 235 (D.N.J.
LOSS) 6660 60560006000 604068 64% 25

Rosenberg v. United States,
346 U.S. 273
(1953) cccccccvccccccccecccsess 27

Siedlecki v. Schweiker,
563 F. Supp. 43 (W.D.
Mash LOSS) ccccesscescceeses coe abe 26

United States v. Mendoza,
464 U.S. 1594 (1964) .cccscececs 25, 44

Utah v. Ute Indian Tribe,
107 S. Ct. S96 (1986) ccccccese 40

Valdez v. Schweiker,
575 F. Supp. 1203
(D. COLO. LISS) cccccccccesssse 25

-Vvi-

STATUTES AND REGULATIONS

CF UO. © BORIO icc cdeucvasies

30 G.8.0. © BORDEN» kcdceccesses

28 U.S.C. § 2412(d)(2)(A).......

S. Ct.

Social Security Disability
Benefits Reform Act of 1984,

Pub. Le. NO. 98-460... ccccees

Social Security Disability
Benefits Reform Act of 1984,
§ 3(a)(2), 42 U.S.C.A.

§ 1382c (West Supp., 1987)....

Social Security Disability
Benefits Reform Act of 1984,
§ 4(c), 42 U.S.C.A. § 423

(West Supp., 1987) .ccccccccces

-Vvli-

RULG ZhcblAlccocovccecses

34

MISCELLANEOUS

SSR 82-55..... eccccces coccccee

SSR 82-58. cc cccccccccccceccccces

Adjudicatory Policy Memorandum
to Administrative Law Judges

(1982)... ccccce Perrrerrrere ee

C. Fallon, Social Security &
Legal Precedent, Case &
Comment, Vol. 89, No. 2 at

4 (1984) cc ccccccccccvseccceees

H. R. Conf. Rep. -1039, 98th
Cong., 2d Sess 29, 36-39,
reprinted in 1984 U.S. Code
Cong. & Admin. News 3038,

3096. cccccccccccccccccsccccces

-vill-

Page

Passim

Passim

2, 3

26

13, 37

No. 86-1861

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986

Otis R. Bowen, Secretary of the
United States Department of Health
and Human Services, Petitioner,

Vv.

Patrick M. Hyatt, Herman O. Caudle
and Mary P. Lovingood, on behalf
of themselves and all others
similarly situated, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT
A. The Procedural Background of this Case.
This case was the subject of a full

trial on the merits in January 1984.

App. 32a, 8. After receiving extensive

evidence, including the testimony of

officials actually administering the
Social Security Program in North
Carolina, the trial court found that the
Secretary of Health and Human Services
was following a policy of intracircuit
nonacquiescence. App. 40a-42a, 48a-49a,
54a-61la, 83a. In other words, the
Secretary purposefully was refusing to
follow controlling Court of Appeals'
decisions construing the Social Security
Act even when adjudicating claims arising
in the very Circuit that had issued those

:
decisions.+/

l/ th January 1982, for example, the Secretary's
Associate Commissioner for Hearings and Appeals
instructed all administrative law judges to
implement her’ policy of intracircuit non-
acquiescence in this directive:

[T}he federal courts do not run SSA's
programs, and [the] ALJ's are
responsible for applying the Secre-
tary's policies and guidelines regard-
less of court decisions below the
level of the Supreme Court.

Adjudicatory Policy Memorandum to Administrative
(continued)
-2-

The Court further found that the

effect of this policy in North Carolina
was systematic noncompliance with two
important Fourth Circuit decisions. In
Martin v. Secretary of H.E.W., 492 F.2d 905 (4th
Cir. 1974), the Fourth Circuit held that
social security decisionmakers must con-
Sider whether hypertension or diabetes is
disabling in the particular claimant's
case even if it is not accompanied by
end-organ damage. In Myers v. Califano,
611 F.2d 980 (4th Cir. 1980), the Fourth
Circuit ruled that, if some cause for
pain is established, decisionmakers must
consider the claimant's own subjective
accounts of the intensity of that pain,
whether or not corroborated by "objec-
tive" or "clinical" evidence. The

District Court found that decisionmakers

Law Judges (1982), quoted in full in Joint
Appendix [JA] filed with the Fourth Circuit at
353-54; see also JA 372-73.

-3-

eT a See

in North Carolina systematically were
deciding claims in violation of these
holdings because they had been instructed
to follow the Secretary's Social Security
Rulings (in particular, SSR 82-55 and
82-58) regardless of the law of the

Circuit. App. 43a-45a, 56a-57a.2/

2/ The Court also found nonacquiescence in the
"medical improvement" rule applicable in disabil-
ity termination proceedings under. Dotson vy.
Schweiker, 719 F.2d 80 (4th Cir. 1984). See
App. 58a. Due to the intervention of Congress,
this medical improvement issue and the claims of
unnamed terminee class members are not before the
Court. See Cert. Petn. 7-8. As in his petition
in Heckleryv. Polaski, cert. denied, No. 86-1617
(June 16, 1987), the Secretary cites this inter-
vention of Congress to insinuate that the Court
of Appeals erred in reinstating class relief on
the theory that the class had become improperly
represented. Cert. Petn. 6 n.3, 8 n.5. The
Secretary's "arguments" in this regard, however,
were not made to the Fourth Circuit on remand,
were not made at any time in either lower court,
and indeed are not raised by the questions pre-
sented in this petition for certiorari. Cert.
Petn. (I). In any event, these suggestions of
error are frivolous for reasons already explained
to this Court. See Reply Br. in No. 85-474,
Hyatt v. Heckler, filed Dec. 16, 1985 at 3 & n.3.

-4-

Having identified these systematic

violations of_the Social Security Act as
interpreted by the Fourth Circuit, the
District Court certified a statewide
class of Social Security claimants vic-
timized by the Secretary's policy.
App. 65a-7la. In doing so, the Court
concluded that it had jurisdiction over
the claims of all plaintiff class members

( The District

under 42 U.S.C. § 405(g).2
Court ordered new hearings for these
class members and also entered injunctive
relief. App. 62a-64a. The Secretary
appealed.

In a decision issued March 20, 1985,

a Fourth Circuit panel upheld the

3/ Section 405(g), the judicial review provision
of the Social Security Act, is reproduced at
App. 104a. The statute is the pertinent juris-
dictional provision in cases of this kind,
because federal-question jurisdiction normally is
unavailable in Social Security cases. See, e.g.,
Heckler v. Ringer, 104 S. Ct. 2013 (1984).

-5S-

District Court's award of class-wide
relief, including the award of new hear-
ings to initial-applicant members of both
the "Martin" and "Myers" subclasses.
App. 26a-27a. In doing so, the Court
observed that the plaintiff class
"included claimants whose wenetite were
terminated because the Secretary did not
follow this circuit's precedent," id. at
19a, and chastened the Secretary for his
policy of nonacquiescence, id. at 20a-2la,
27a.

Based on earlier interpretations of
section 405(g) in Heckler v. Ringer, 104 S.
Ct. 2013 (1984), and dunt v. Schweiker,
685 F.2d 121 (4th Cir. 1982), however,
the Court of Appeals reduced the size of
the plaintiff class. In particular, the
Court of Appeals held that the District
Court erred in assuming jurisdiction over
those class members who had not fully
exhausted administrative remedies. The

-6§-

Court reached this conclusion because it

read Ringer as requiring exhaustion when-
ever a plaintiff asserts "a claim that
the Secretary was applying an improper
standard for entitlement." App.
re toe fe The Court of Appeals also held
that the District Court erred in
including in the class persons who did
not seek judicial review (or have this
case pursued on their behalf) within 60
days after denial of their administrative
claims. The Court considered itself
bound by Hunt to reach this conclusion,
noting that "({iJn this circuit, the 60-
day requirement is considered to be
jurisdictional" and therefore not subject
to equitable tolling. App. 23a.
Finally, the Court of Appeals vacated the
District Court's award of injunctive
relief based on its reading of the Social
Security Disability Benefits Reform Act
of 1984 (the "1984 Act"). App. 2la.

-7-

Following issuance of the Fourth
Circuit's decision, the plaintiffs peti-
tioned this Court for a writ of
certiorari on the exhaustion, 60-day and
injunction issues. This Court responded
by holding in abeyance a ruling on the
plaintiffs' petition pending its decision
in Bowen v. City of New York, 106 S. Ct. 2022
(1986).

B. The Decision in City of New York.

City of New York brought before this
Court precisely the same jurisdictional
arguments of the Secretary that’ the
Fourth Circuit had accepted in reducing
the scope of the plaintiff class in this
case. In City of New York, the plaintiffs
had proven that, contrary to published
regulations, the Secretary was concluding
routinely that mentally impaired claim-
ants were not disabled if they did not
have one of the "listed impairments" set
forth in the regulations. See id. at

-8-

2026-27 and n.5.4/ The District Court

held that the Secretary's unpublished
policy was unlawful and ordered new bene-

fit hearings for a class of claimants

4/ Under the regulations, the Secretary uses a
five-step sequential evaluation process in dis-
ability cases. The first two steps focus on
whether the applicant is actively working (if so,
benefits are denied), and whether he or she
suffers from some condition sufficient to be at
least potentially determined to be disabling (if
not, benefits are denied). The third step con-
cerns whether the claimant has one of the "listed
impairments" the Secretary views as conclusively
establishing disability (if so, benefits are
granted). If the claimant does not have a listed
impairment, then the regulations require the
decisionmaker to go on to determine whether the
claimant is nonetheless unable to perform his
former job (Step 4) or another job (Step 5) in
light of his or her "residual functional capa-
city." See generally 106 S. Ct. at 2025. In City
of New York, the plaintiffs proved that the
Secretary was routinely determining--pursuant to
a "presumption" that was “effectively conclu-
sive,'' City of New York v. Heckler, 578 F. Supp.
1109, 1115 (1984)--that a claimant was not dis-
abled if the claimant did not have a listed
impairment, regardless of the claimant's residual
functional capacity. This case, like City of New
York, involves "effectively conclusive" presump-
tions with respect to hypertension and diabetes
unaccompanied by end-organ damage and _ with
respect to pain unaccompanied by objective evi-
dence of its severity.

-9-

adversely affected by that unlawful pol-
icy. City of New York v. Heckler, 578 F. Supp.
1109, 1125. That class included persons
who had not exhausted administrative rem-
edies or strictly satisfied the 60-day
time limit set forth in 42 U.S.C.
§ 405(g). 578 F. Supp. 1109. After the
Second Circuit affirmed, 742 F.2d 729
(1984), this Court granted the writ of
certiorari to consider the proper appli-
cation of the exhaustion and 60-day
rules.

On June 2, 1986, this Court issued
its decision in Bowen v. City of New York,
106 S. Ct. 2022 (1986), and in a 9-0
ruling, rejected both of the Fourth
Circuit's holdings that had led to its
contraction of the plaintiff class in
this case. In particular, this Court
held: (1) that exhaustion of the Secre-
tary's administrative procedures properly
may be excused even. when plaintiffs

-10-

challenge the Secretary's application of

standards of entitlement, id. at 2031-33;
see note 4 supra, and (2) that the 60-day
time period of section 405(g) is not
jurisdictional and is subject to equi-
table tolling, 106 S. Ct. at 2029-31.
Based on these rulings, this Court--again
by unanimous vote--affirmed in full the
lower court's award of new hearings to
all class members, including claimants
who had not exhausted administrative
remedies or brought suit within 60 days
after the denial of their claims. Id. at
2033. One week later, this Court granted
the petition for certiorari in this case,
vacated the Fourth Circuit's March 1985
judgment, and remanded for
reconsideration in light of City of New
York.

Meanwhile, during the pendency of
the plaintiffs' petition for certiorari
in this Court, the District Court had

-ll-

entered its second order awarding
attorneys' fees to plaintiffs pursuant to
the Equal Access to Justice Act,
26 U.S.C. § 2412(d) (the "EAJA").
App. 92a-103a. The Secretary separately
appealed that decision to the Fourth
Circuit. On December 5, 1986, the Court
of Appeals issued its decision addressing
this Court's remand order- and the
attorneys' fees appeal. App. la-l3a. It
is this decision that the Secretary chal-
lenges by way of the petition now before
the Court.

C. The Fourth Circuit's Decision on Remand.

In the decision now under review,
the Court of Appeals reinstated as class
members those claimants who, as in City of
New York, had not exhausted administra-
tive remedies or filed suit within 60
days after the final denial of their
claims. In reaching this decision, the
Court relied with emphasis on the policy

-12-

of

intracircuit nonacquiescence estab-

lished during the trial of this action.

As explained by the Court of Appeals:

App.

On the basis of ample evidence the
Gistrict court found that the
Secretary instructed the North
Carolina disability determination
service and administrative law
judges to follow the Secretary's
regulations instead of circuit court
decisions which conflict with the
Secretary's interpretation of the
Social Security Act. Also, the
Secretary directed administrative
law judges not to cite conflicting
court decisions. 579 F. Supp. at
993-996. The Secretary's policy of
nonacquiescence in the law of the
Circuit is well documented, and it
has been the subject of congres-
Sional criticism. See Hyatt v. Heckler,
757 F.2d at 1459-60; H.R.Rep. 1039,

98th Cong., 2d Sess. 36-38,
reprinted in 1984 U.S. Code Cong. &
Admin. News 3038, 3096. The
district court found, citing

examples, that the Social Security
Administration had applied the
policy of nonacquiescence to members
of several subclasses by failing to
apply the law of the circuit in
evaluating diabetes, hypertension,
and pain.

4a-5a (emphasis added). Again

focusing on the trial evidence, the

Fourth Circuit emphasized that these

-13-

“findings of historical fact are not
clearly erroneous." App. 7a.

Confronted with this record, the
Court of Appeals held that judicial
relaxation of the exhaustion rule was
“consistent with the analysis of the
issue in Bowen’ v. City of New York."
App. 7a. The Court reasoned that, "as in
City of New York, the claim is collateral to
the claim for benefits" and “claimants
would be irreparably harmed if exhaustion
requirements were enforced." App. 6a.
The Court noted in particular this
Court's observation in City of New York that
""'(twjle should be especially sensitive to
this kind of harm where the government
seeks to require claimants to exhaust
administrative remedies merely to enable
them to receive the procedure they should
have been afforded in the first place.'"

App. 6a-7a, quoting 106 S. Ct. at 2032.

-14-

The Court of Appeais also_ found
equitable tolling of the 60-day require-
ment to be proper. Again, the Fourth
Circuit relied squarely on this Court's
tolling analysis in City of New York,
echoing in particular this Court's obser-
vation that these claimants "'were
entitled to believe that their Govern-
ment's determination of ineligibility was
the considered judgment of an agency
faithfully executing the laws of the
United States.'" App. 7a, quoting
106 S. Ct. at 2030.

The Court of Appeals emphasized that
its holdings with respect to the exhaus-
tion and 60-day rules were narrow ones
specifically based on the “exceptional
circumstances" established by this
record. App. 3a. Carefully tracking the
principles laid down in City of New York,
the Court explained that "waiver would
not be available if a claimant alleges

-15-

mere deviation from applicable regula-
tions," App. 3a, or "mere irregularities
Or errors," App. 8a. Relaxation of the
normal section 405(g) rules was warranted
only because the claimants in this case
were the eiotina of "a systematic, unpub-
lished policy that denied benefits in
disregard of the law." App. 8a-9a.
Turning to the attorneys' fee ques-
tion, the Court of Appeals affirmed the
order of the District Court. The Court
upheld in particular the District Court's
finding that the secetacs was not "sub-
Stantially justified" in "consciously and
willfully disregard[ing] the law.
App. 83a. The Court of Appeals could
"perceive no factual or legal ground for
departing" from the rule subjecting the
Secretary to EAJA liability in cases of
demonstrated intracircuit nonacquies-

cence. App. lla-l2a.

-16-

D. The Polaski case.

Approximately one month prior to the
Fourth's Circuit's issuance of its
decision in this case, the Eighth Circuit
handed down its decision in Polaski_ v.
Heckler, 804 F.2d 456 (1986). The Polaski
case -- like this case -- involved a
challenge to the Secretary's practice of
evaluating pain in violation of governing
Circuit court law. That case -- like
this case -- had been remanded by this
Court for reconsideration in light of
City of New York. In that case -- as in
this case -- the Court of Appeals on
remand held that City of New York called for
a relaxation of strict application of
section 405(g). On April 8, 1987, the
Secretary filed a petition for certiorari
seeking review of the Eighth Circuit's
decision on remand in Polaski. In his
Subsequent petition in this case, the
Secretary recommended that this case be

-l7-

sae itiieaiia a ti

held in light of Polaski. On June 16,
1987, this Court denied the Secretary's
petition in Polaski without comment or

dissent.

DISCUSSION

This case is not a proper case for
allowance of the writ of certiorari.
Indeed, all the factors normally con-
sidered by this Court in making
certiorari determinations indicate that
this petition should be denied.

In its unanimous City of New York
opinion, handed down just last term, this
Court thoroughly explored the principles
governing judicial relaxation of section
405(g)'s exhaustion and 60-day rules.
This Court then acted in this very case,
and the Court of Appeals on remand care-
fully adhered to this Court's instruc-
tions. In the decision below, the Fourth

Circuit applied the plain rules set forth

-18-

in City of New York to the particular facts
presented by this record. Indeed, the
Court of Appeals itself declared its
holding to be fact-specific and narrow,
emphasizing that “waiver of the exhaus-
tion requirement and tolling of the
period of limitation will rarely be appro-
priate." App. 3a (emphasis added).

The Secretary can point to no
decision by any other Court of Appeals--
Or indeed by any other court at all--with
which the Fourth Circuit's decision con-
flicts. In fact, the development of a
conflict is not even a future possibil-
ity, Since the Secretary's previous
policy of wholesale nonacquiescence, on
which the Fourth Circuit's decision
Squarely rests, recently has undergone a
major revision. See Cert. Petn. 17
n.9. Also during the course of this
litigation, the Secretary has rescinded
altogether one of the Social Security

-j|9-

Rulings his decisionmakers had applied in

derogation of circuit court law, _ see
Cert. Petn. 5 (discussing SSR 82-55), and
has in practical effect significantly
revised the other, see pages 36-38 infra.
In light of these developments, the
questions presented by this’ petition
cannot and will not recur.

The decision of the Court of Appeals
waS made by an experienced panel of
judges having extraordinary familiarity
with this case.2/ The panel's decision

waS unanimous, and the government's peti-

5/ All Fourth Circuit proceedings have been
before Judges Russell, Butzner and Hall. This
same panel thus has considered no less than four
full sets of briefs over the past three years,
(i.e., briefs on the initial merits appeal, briefs
on the initial attorneys' fee appeal, supple-
mental briefs ordered by the Fourth Circuit
following passage of the 1984 Act, and the exten-
sive briefs filed following this Court's remand
on June 9, 1986), three petitions for rehearing
and numerous motions filed by the litigants. In
addition, Judge Butzner, who wrote both panel
opinions, also wrote the Fourth Circuit's
decision in Myers.

-20-

tion for rehearing was denied without

objection Or comment. The result in the
panel's initial decision and its studied
application of City of New York on remand
show that the lower court's approach to
section 405(g) has been marked by caution
and restraint.

This Court's denial, only a few days
ago, of the Secretary's companion peti-
tion for certiorari in Bowen v. Polaski, cert.
denied, No. 86-1617, clearly confirms that
the petition in this case should be
denied. The Secretary himself has
acknowledged that "the issues in this
case are closely related to those pre-
sented in Bowen vy. Polaski because both
cases involved "the Secretary's policies
under SSR 82-58 regarding the evaluation
of pain." Cert. Petn. at 14. In fact,
the Secretary made precisely the same
arguments for Supreme Court review in
both petitions, with the notable excep-

-?1-

tion that in Polaski the Secretary could

advance a far stronger claim of possible
error. See discussion at 25-26, infra. [It
is not surprising, in this setting, that
the Secretary himself recommended that
"the Court hold the petition in this case
and dispose of it as appropriate in light of the disposi-
tion in Polaski." Heckler v. Poiaski,
No. 86-1617, Petition for Certiorai at 15
(emphasis added). Indeed, it would be
fundamentally inequitable to impose
further delay on these North Carolina
claimants while identically situated
Claimants in the Eighth Circuit now pro-
ceed to receive prompt reconsideration of
their claims.

The Secretary understandably wishes
that this Court had decided City of New York
differently. But, aS in Polaski, that
preference does not provide a persuasive
reason for granting the writ of
certiorari in this case. Nor has the

-22-

Secretary identified any other’ sound
reason for further Supreme Court review.

Boiled down to basics, the
Secretary's petition advances three argu-
ments for allowance of the writ. First,
_asS in Polaski, the Secretary argues that
the Court of Appeals erred. Second, as
in Polaski, the Secretary points to the
burden he now confronts in administering
the relief ordered by the lower courts.
Third, the Secretary relies on _ Polaski
itself in arguing that this Court should
revisit section 405(g). As this Court's
disposition of the Polaski petition indi-
cates, none of these arguments provides a
legitimate basis for intervention by this
Court.

(1) The Secretary devotes most of
his petition to arguing that the Fourth
Circuit's decision iS~ wrong. The
Secretary's scattershot claims of error,
however, are neither well-taken nor

-23-

deserving of plenary review by this
Court.

(a) The Secretary initially con-
tends that "the district court had no
jurisdiction over these class members’
claims" because "each such- claimant
declined to seek further review" after
receiving "a personal notice informing
him that his claim for benefits had been
denied." Cert. Petn. 13-14. This argu-
ment, however, is not an argument at all,
for it begs the very question presented;
indeed, this Court unanimously rejected
exactly the same argument in City of New
York.

(b) Making an effort to distinguish
City of New York, the Secretary contends
that his policy of intracircuit nonacqui-
escence provides no justification for
relaxing the exhaustion-= and 60-day
rules. Cert. Petn. 15-17. The Secretary
argues, for example, that intracircuit

-24-

nonacquiescence is merely one permissible
manifestation of the rule exempting the
federal government from the doctrine of
nonmutual collateral estoppel. See United
States v. Mendoza, 464 U.S. 154 (1984). The
wholesale refusal by subordinate agency
decisionmakers to follow controlling cir-
cuit court law, however, is a far cry
from authorizing relitigation in court of
particular issues earlier resolved
against the government in different

district or circuit courts. ©/ Nor can

6/ The Secretary's current reliance on Mendoza
is also improper because the Secretary specifi-
cally abandoned her defense of the legality of
nonacquiescence when the case first came before
the Court of Appeals, and because the argument
confuses the legality of nonacquiescence with
whether or not sufficiently compelling equities
exist to relax the usual limitations of § 405(g).
In any event, the courts overwhelmingly have
found impermissible the sort of intracircuit non-
acquiescence at issue in this case. Lopez v.
Heckler, 725 F.2d 1489, 1494, 1497 (9th Cir.
1984), vacated and remanded on other grounds,
469 U.S. 1082 (1984); Valdez v. Schweiker, 575 F.
Supp. 1203 (D. Colo. 1983); Rivera v. Heckler, 568
F. Supp. 235 (D. N.J. 1983); Siedlecki v.
(continued)
-25-

the Secretary persuasively contend that
his flouting of the law should be ignored
because "the Secretary in this case did
not formally announce that SSA would not
follow a particular decision." Cert.
Petn. 16 (emphasis added). Indeed, a sub
rosa policy © of intracircuit
nonacquiescence is even more pernicious
than a policy that is openly disclosed.
Accord, e.g., C. Fallon, Social Security & Legal
Precedent, Case & Comment, Vol. 89, No. 2
at 4 (1984).

The Secretary also grasps at straws

in citing what the Court “appeared to

Schweiker, 563 F. Supp. 43, 48 (W.D. Wash. 1983);
See ITT World Communications, Inc. v. FCC, 635 F.2d
32, 43 (2d Cir. 1980); Ithaca College v. NLRB,
623 F.2d 224, 228 (2d Cir.), cert. denied,
499 U.S. 975 (1980); Jones & Laughlin Steel Corp. v.
Marshall, 636 F.2d 32, 33 (3rd Cir. 1980);
Allegheny General Hospital v. NLRB, 608 F.2d 965,
970 (3rd Cir. 1979); Beverly-Enters. v. NLRB,
727 F.2d 591, 593 (6th Cir. 1984) (per curiam);
Mary Thompson Hospital, Inc. v. NLRB, 621 F.2d 858,
864 (7th Cir. 1980); Flores v. HEW, 228 F.
Supp. 877, 878 (D.P.R. 1964).

-26-

see," Cert. Petn. 16, in considering the
emergency stay motions presented in
Heckler v. Lopez, 463 U.S. 1328 (Rehnquist,
J., acting as Circuit Justice); 464 U.S.
879 (denying motion to vacate stay of
Circuit Justice). See generally Rosenberg v.
United States, 346 U.S. 273, 286-87 (1953)
(requiring substantial deference to stay
issued by Circuit Justice). In fact, in
Lopez, a unanimous Court ultimately refused
to stay the Ninth Circuit's award of new
hearings for nonacquiescence victims even
though they had failed to exhaust
administrative remedies. 466 U.S. 955
(1984), reviewing stay of judgment after affirmance
at 725 F.2d 1489 (9th Cir. 1984).
Although the Court did stay relief to
class members who had not satisfied the
60-day requirement, it did so only to
permit full exploration of the _ then-
disputed issue whether the 60-day rule is
jurisdictional. This Court, of course,

-27-

subsequently considered this very issue
in City of New York and unanimously rejected
the Secretary's position.

The Secretary's established policy
of intracircuit nonacquiescence in fact
makes this case an even stronger case
than City of New York for relaxing
section 405(g)'s exhaustion and 60-day
rules. It makes no sense to require
exhaustion in intracircuit mnonacqui-
escence cases, for the very act of
requiring exhaustion will provide the
vehicle permitting agency decisionmakers
to engage in the challenged practice of
flouting circuit court law. Strict
enforcement of the 60-day rule is also
inappropriate in this context, because
the judiciary should not be compelled to
enforce a nonjurisdictional procedural
rule to shield from judicial correction
the Secretary's purposeful disregard of
judicial authority. As the Ninth Circuit

-28-

observed in Lopez, the Secretary may not
properly "{use] the procedural require-
ments aS a mechanism for evading the law
she is required to apply." Lopez v.
Heckler, 725 F.2d 1489, 1506 (9th Cir.),
vacated and remanded on other grounds, 469 U.S.
1082 (1984). The Secretary's proven
practice of intracircuit nonacquiescence
makes this case, if any case, an appro-
priate one in which to dispense with
strict application of section 405(g).

(c) The Secretary also seeks to
avoid City of New York by arguing that the
informal nonacquiescence found to exist
in this case was not so “'secret'" that
"class members were lulled into
inaction." Cert. Petn 17. The Fourth
Circuit, however, persuasively responded
to the Secretary's argument, concluding
that considerations of "secrecy" in fact

likened this case to City of New York. As

-29-

stated by the Court of Appeals after
renand from this Court:

We cannot accept the Secretary's
argument. The Secretary never
published the agency's informal
policy of not following the law of
the circuit with respect to hyper-
tension, diabetes, and pain. On the
contrary, as the district court
found, the Secretary directed
administrative law judges not to
cite the conflicting court deci-
sions. See 579 F. Supp. at 996.
The effect of the unpublished nonac-
quiescence policy on North Carolina
claimants was not disclosed until
this case was tried. See 579 F.
Supp 993-94.

The evidence did not reveal mere
irregularities or errors in indivi-
dual cases. Instead, it depicted a
systematic, unpublished policy that
denied benefits in disregard of the
law. It is unrealistic to believe
that publication of both the
agency's regulations and the court
of appeals' decisions would alert
lay persons to the Secretary's non-
acquiescence in circuit law. The
Hyatt claimants, no less than those
in Bowen vy. City of New York, were
entitled to believe that agencies
charged with evaluating claims
according to law had faithfully per-
formed their duties.

App. 8a-9a.

-30-

The Secretary's arguments respecting
section 405(g) in effect reflect § an
effort to confine City of New York to its
own facts. This Court itself, however,
observed in City of New York that the facts
of that case fell “well within" the
"Outer bounds of our holding." 106 S.
Ct. at 2033. The Fourth Circuit's treat-
ment of section 405(g) was careful,
accurate, and strictly in keeping with
this Court's analysis in City of New York.
As in Polaski, that fact-bound analysis
Clearly provides no basis for further
review by this Court.

(d) Finally, the Secretary
challenges the Fourth Circuit's decision
by arguing that he violated no one's
rights at all; the reinstated class mem-
bers, he says, should not receive relief
because no class members ever should have
prevailed. Cert. Petn. ll n.7, 14, 16.
This challenge to the lower courts'

-3l-

underlying findings of liability--which

has nothing at all to do with section
405(g)--comes too late.2/ In any event,
the Secretary's liability arguments have
no merit.

The Secretary advances two separate
liability arguments. First, the
Secretary argues that his policies "were

not inconsistent with the Fourth

1/ The Secretary chose not to cross~-petition for
certiorari on the Liability question when this
case was last before the Court, so that the peti-
tion this Court granted presented questions con-
cerning only jurisdiction over claims of class
members who had not complied with the exhaustion
or 60-day rules and the availability of injunctive
relief in this kind of case. See Cert. Petn.
No. 85-474 at (i) and Brief for the Respondent in
No. 85-474 at (I) (identifying questions pre-
sented). Accordingly, this Court's remand order
could at most return these issues to the Circuit
Court for reconsideration. See SS. Ct.
Rule 21.l(a) (last sentence). Indeed the
Secretary argued on remand, and the Fourth
Circuit agreed, that this Court's remand order
did not put back before the Fourth Circuit even
the injunction question that had been presented
in the’ plaintiffs' granted petition’ for
certiorari, App. 9a3 afortiori, it was not and is
not open to the Secretary to reargue the underly-
ing issue of liability in this case.

-32-

Circuit's decisions in Martin and Myers."

Cert. Petn. 16. The District Court, how-
ever, both found noncompliance with Martin
and Myers in actual practice and perva-
Sively demonstrated the facial inconsis-
tency between the Secretary's Social
Security Rulings and the holdings of
these Fourth Circuit cases. App. 43a,
56a-57a. The Secretary's claim of com-
pliance with Martin and Myers has a par-
ticularly hollow ring in the posture this
case now occupies. The Fourth Circuit
itself already twice has rejected the
same claims of compliance with Fourth
Circuit law the Secretary again makes in
this petition.

In his second liability argument,
the Secretary contends that Congress
"ratified" the Secretary's “policies" in
enacting the 1984 Act. It follows, the
Secretary argues, that his policies were
always "valid"; thus the lower courts

-33-

must have erred in granting relief based
on their implementation. Cert.
Petn. 14. The most apparent fallacy in
this argument is that Congress in 1984
could not and did not change pre-existing
law. That law, in the Fourth Circuit,
was the Social-Security Act as inter-
preted in Martin and Myers. There is
nothing whatsoever in the 1984 Act pur-
porting retroactively to alter these
decisions or the principles they state.
See 1984 Act § 3(a)(2), Social Security
Disability Benefits Reform Act of 1984,
§ 3(a)(2), 42 U.8.€ A; § 1382c (West
Supp. 1987), (making statutory pain stan-
Gard applicable through future date so as
to give Congress time for further study);
id. at § 4(c), id. at 4. ° (making new
section 4 applicable more than "30 days
after enactment of this Act").

In any event, the Secretary reads
far too much into the 1984 Act when he

-34-

argues that the Act "ratified" even pro-
spectively the "administrative standards"
found unlawful by the lower courts.
Cert. Petn. 14. With respect to hyper-
tension and diabetes, the Secretary
argues that Section 4 of the 1984 Act
implicitly endorsed the Secretary's use
of a “severe impairment" test in the
five-step sequential evaluation process.
See Bowen v. Yuckert, No. 85-1409 (U.S.
June 8, 1987); see generally note 4, supra.
Martin, however, did not question at all
the propriety of using a "severe impair-
ment" test; rather, Martin merely rejected
the Secretary's position that end-organ
damage is an exclusive precondition to
the establishment of disability from
hypertension or diabetes. See Yuckert,
Supra, Slip op. at 15 n.12 (Court notes
that "we have no occasion to consider
whether [the severe impairment regula-

-35-

tion] is valid as_ applied;"| emphasis
added).

Faced with this fact, the Secretary
implies that Congress "ratified" even the
Secretary's treatment of hypertension and
diabetes because a Senate and Conference
Report noted ‘that the Secretary's
severity policy was “elaborated [upon] in
rulings." Cert. Petn. 9 n.6. The
suggestion that this uninformative tidbit
of legislative history somehow was
intended to repudiate the specific hold-
ing of Martin simply is not persuasive.
See also Yuckert, supra, Slip op. at 13 n.9 and
15 n.12 (noting that House Report accom-
panying 1984 Act “urged the Secretary to
reevaluate the severity criteria to
determine whether they were too strict").

The Secretary also misinterprets the
effect on this case of Congress' "ratifi-
cation" of the Secretary's policy on
pain. To be sure, Congress indicated an

-36-

ne

intent to codify the Secretary's
"current" policy with respect to pain in
passing section 3 of the 1984 Act.
H.R. Conf. Rep. 98-1039, 98th Cong., 2d
Sess. 29 (1984). At the time Congress
acted, however, the Secretary had
restated his pain policy in a formal con-
sent order filed in the Polaski litigation
in a manner that reflected a substantial
modification of the pain rule that had
been applied to these class members.
Polaski v. Heckler, 739 F.2d 1320 (8th Cir.
1984). In the Polaski consent order,
issued ain months after the trial in this
case, the Secretary purported to clarify
the Administration's pain policy, includ-
ing by recognizing (contrary to prior
agency practice) the propriety of con-
Sidering purely subjective evidence of
the intensity of pain. This "clarifica-
tion" in the Polaski consent order had not
been set forth in the text of SSR 82-58

-37-

and incontrovertibly was not the "policy"
applied in North Carolina to these class
members' claims. See App. 44a-45a.
Because Congress "ratified" a policy that
was never applied to the claims of these
class members, the Secretary cannot
reasonably argue’ that such ratification
demonstrates an error in the findings in
this case. For all these reasons, as in
Polaski, the Secretary's ratification
argument is neither meritorious’- nor

deserving of this Court's review. 8/

8/ Nor is there any basis for the Secretary's
related argument that this purported "ratifica-
tion" by the 1984 Act somehow stripped the Lower
courts of the power to afford any remedy to the
pain claimants in this case. See Cert. Petn.
17-18. These claimants are entitled to a remedy
because the Secretary violated their rights by
not reviewing their claims in accordance with
governing law. The Fourth Circuit has remedied
this wrong by ordering agency reconsiderations
conducted in conformance with governing law.
Notably, the Fourth Circuit recently interpreted
section 3 of the 1984 Act, in conformance with
Myers, to require consideration of purely sub-
jective evidence of the intensity of pain. See
Foster v. Heckler, 780 F.2d 1125 (4th Cir. 1986).
(continued)
-38-

At bottom, the Secretary's argument
about congressional "ratification" and
the alleged consistency of his "policies"
with Martin and Myers misses the basic
point of the proof in this case. That
proof showed that the Secretary's
decisionmakers were in real life systemati-
cally misevaluating claims concerning
pain, hypertension and diabetes. See JA
186, 187, 194-95, 292, 296-97, 300-01,
360, 362, 363-64. These violations were
established by the evidence and the trial
court's findings--regardless of the
Secretary's current description of his
current "policies" and regardless of the
enactment of legislation months after the

trial of this case.

As a result, under the court's remand order,
these claimants should receive precisely the sort
of review they initially should have received,
but did not receive because of the Secretary's
illegal conduct.

-39-

(2) The Secretary's protestations
about facing a significant burden also do
not justify Supreme Court review. This
Court regularly denies petitions grounded
principally on the onerousness of the
judgment challenged in this Court .2/
Moreover, as the Polaski case illustrates,
the Secretary can claim no exemption from
this practice. Indeed, the reasons
behind the practice--the press of other
Court business, the presumed adequacy of
lower court review, the need for finality
in litigation and the unique role of this
tribunal as the arbiter of recurring
questions of legal doctrine--press

especially hard against allowance of the

9/ Cases involving life imprisonment, and even
the death penalty, are illustrative. Numerous
civil cases also come to mind. See, e.g. Utah v.
Ute Indian Tribe, 107 S. Ct. 596 (1986); Kosher v.
Stamatis, 106 S. Ct. 1515 (1986); Elrod v. Suran,
465 U.S. 1108 (1984); Holloway v. Valley, 464 U.S.
914 (1983).

~40-

Secretary's petition in this case. The
Secretary, for example, already has had a
full opportunity to litigate this case at
all three levels of the federal judici-
ary. This Court, just last term, treated
fully the general principles of
section 405(g) jurisdiction that the
Secretary asks this Court to revisit in
this case. This judicial review proceed-
ing--which has been pending since 1983
and involves potential relief for
Claimants unlawfully denied benefits as
long ago as 198l--cries out with a
vengeance for finality.

The government's plea of burdensome-
ness alsc comes to the Court unaccom-
panied by = any | convincing claim of
equity. It was the Secretary, after all,
who chose to flout controlling judicial
authority in a systematic and sweeping
fashion. See, eg., App. 48a at 4 68-69.
Given the scope of the Secretary's wrong-

-4l-

ful conduct, it is neither surprising nor
unfair that the lower courts have ordered
the Secretary to afford broad relief.
Indeed, in City of New York this Court
rejected the same protestations’ the
Secretary now makes with words that con-
tinue to ring true:

[W]e are aware that administrative

inconvenience may result from our

decision today. But the Secretary
had the capability and the duty to
prevent the illegal policy found to
exist by the District Court."

106 S. Ct. at 2033.

In addition, while the administra-
tive burden the Secretary faces may be
substantial, it pales in comparison to
the burden imposed on these class mem-
bers. Both the Court of Appeals and the
District Court have recognized the
irreparable injury that these class
members continue to endure. App. 6a,

47a. As explained by the District Court,

the availability of benefits "means for

-42-

many of the members of plaintiffs' class
the difference between existence at a
bare subsistence level and the ability to
pay the utility bills to keep warm in
freezing temperatures, or to purchase an
occasional item of clothing or piece of
meat .« « -« No amount of retroactive
benefits can compensate for years of
deprivation and anxiety--which may even
ultimately result in death." App. 53a.
The continuing human toll these class
members face is no less deserving of this
Court's attention than the administrative
burden the Secretary has brought upon
himself.

(3) Nor can the Secretary persua-
Sively rely on the Eighth Circuit's
decision in Polaski in seeking review by
this Court. See Cert. Petn. 14.
Obviously, what now is most telling about
Polaskki is that this Court unanimously
denied the Secretary's petition for

-43-

certiorari in that case. This result was
hardly surprising, for this Court has
emphasized "the benefit it receives from
permitting several courts of appeals to
explore a difficult question before this
Court grants certiorari," and "its practice
of waiting for a conflict to develop before grant-
ing the Government's petition." Mendoza,
supra, 464 U.S. at 160 (emphasis added).
The lower courts' decisions in Polaski and
this case were the very first decisions
to apply City of New York. Those decisions
conflict neither with each other nor with
any decision of any other court. Well-
established principles of certiorari
jurisdiction thus dictated the proper
disposition in Polaski, just as they do in
this case.

Indeed, this Court's denial of the
writ in Polaski establishes a fortiori that
there is no basis for allowance of the
writ here. This case came to the Court

-~44-

anaemia eee

of Appeals on findings made after a full
trial on the merits; the Eighth Circuit
in contrast, acted only on an appeal of a
preliminary injunction. On remand from
this Court, the Fourth Circuit carefully
detailed the "exceptional circumstances"
justifying a departure from the general
exhaustion and 60-day rules, see App. 3a,
6a-9a; that Court, accordingly, is not
possibly subject to criticism for being
"almost casual" in its analysis. Compare
Polaski Cert. Petn. 12 and 19.

Most significantly, however, the
Eighth Circuit in Polaski neither found
nor relied upon a policy of intracircuit
nonacquiescence. Rather, as the
Secretary repeatedly emphasized in his
Polaski petition, the Eighth Circuit's
decision rested on a Consent Order speci-
fying only that "some adjudicators" had
"Misinterpreted" operative law. See

Polaski Cert. Petn. 10, ll, 17, 19, 21.

-45-

The lower courts' additional finding of

and focus on the Secretary's systematic
nonacquiescence in this case plainly make
it an even more compelling case than
Polaski for relaxing the general rules of
section 405(g). The denial of the writ
in Polaski thus clearly indicates that the
writ should be denied here.

(4) Finally, there is no- sound
reason to hold the attorneys' fee ques-
tion presented by the Secretary's peti-
tion in light of Pierce v. Underwood, cert.
granted, No. 86-1512 (May 18, 1987).
Underwood is not relevant here because it
involved neither intracircuit nonacqui-
escence nor any conduct akin to it, and
the linchpin of both the District Court's
findings (App. 83a, 94a) and the Fourth
Circuit's reasoning with respect’ to
attorneys' fees was the Secretary's non-
acquiescence. As the Fourth Circuit
flatly stated: "The primary issue, on

-~46-

which the outcome of this case depended,
was the Secretary's policy of nonacquies-
cence in the law of the circuit." (App.
lla). Accordingly, a “hold” on the
"substantially justified" issue would not
be appropriate.

Nor is a hold warranted on the
ground that Underwood involves a challenge
to a fee award in excess of $75 per hour.
The District Court in this case adjusted
counsel fees above $75 per hour only
after making a specific finding of the
unavailability of other qualified
attorneys (as is authorized by the very
terms of the statute, see 28 U.S.C.
§ 2412(d)(2)(A)), and determining that an
adjustment to the rate was justified by
increases in the cost of living (as is
also specifically permitted by the terms
of the statute, see id.). See App. 88a,
102a. Underwood, which involved _ no
specific finding regarding the availabil-

-47-

ity of counsel and which does not concern
the relevance of cost of living adjust-
ments at all, simply is not pertinent in
these circumstances. In any event, the
fee increases involved here were modest
and gave rise to only a fraction of the

challenged award.12/ to hold this peti-

tion for this reason in these circum-
stances would be truly to let the tail

wag the dog.

CONCLUSION
Both this Court's established rules

of practice and powerful considerations

10/ the District Court increased the hourly fee
award for some counsel in this case to either $83
or $95 per hour for work performed from 1983-85.
App. 88a, 102a. These figures compare with an
award in Underwood of $120 per hour for work
performed in 1982. Indeed all but $2,836 of the
total fee award made by the District Court in
this case (i.e., the amount based on increases for
Fillette, Hayes and Harper above $83 per hour in
the initial award, see App. 88a) reflects the
fixing of fees at $75 or less, together with
cost-of-living adjustments not even at issue in
Underwood.

-48-

of fairness and finality dictate that the
Court should deny the Secretary's peti-
tion for the writ of certiorari. More-
over, the appropriateness of this result
is now especially clear in light of this
Court's denial of the Secretary's
companion petition in the Polaski case.
For all the reasons set forth above,
respondents respectfully request’ that
this Court deny en toto the Secretary's
petition in this case.
Respectfully submitted.
John R. Wester
(Counsel of Record)

Dan T. Coenen

ROBINSON, BRADSHAW & HINSON, P.A.

1900 Independence Center
Charlotte, North Carolina 28246
(704) 377-2536

Charles McBrayer Sasser

LEGAL SERVICES OF SOUTHERN
PIEDMONT, INC.

951 South Independence Boulevard
Charlotte, North Carolina 28202
(704) 376-1608

June 25, 1987

COUNSEL FOR RESPONDENTS

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0269%3A3. Public record. Not legal advice.