Opposition Brief — Roers, Director of Minnesota Disability Determination Services v. Schoolcraft

BPPA DEST A F

f ChURAL S

Nos. 92-1392 and 92-1395

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

DONNA E. SHALALA, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER,

DANIEL J. SCHOOLCRAFT, ET AL., RESPONDENTS.

WALTER ROERS, in his official capacity as Director of

the Disability Determination Services; R. JANE

BROWN, in her official capacity as Commissioner of

the Minnesota Department of Jobs and Training, PETITIONERS.

Ve

DANIEL J. SCHOOLCRAFT, ET AL., RESPONDENTS.

On Petitions For Writs Of Certiorari To The

United States Court Of Appeals For The Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

LAURIE N. DAVISON

Counsel of Record

M. FRANCESCA CHERVENAK

KATHLEEN M. DAVIS

Legal Aid Society of Minneapolis —

430 First Avenue North, Suite 300

Minneapolis, Minnesota 55401-1780

(612) 332-1441

BARBARA J. KUHN

Legal Aid Society of Minneapolis

2929 Fourth Avenue South

Minneapolis, Minnesota 55408

(612) 827-3774

Counsel for Respondents

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QUESTIONS PRESENTED

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nitiai and reconsideratuiol

even if respondents could not proceed under 42 U.S.C. §

evertheless had jurisdiction to consider respondents’ claims

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he court of appeals was correct In waiving exhaustion of

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TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS ..

TABLE OF AUTHORITIES

JURISDICTION ...... 2

8 \eo 2) rae 2

REASONS FOR DENYING THE WRII

I. Introduction

II. The Petitions Should be Denied as to the Sect S3 QO

A. The Color of State Law Issue Does Not Warrant Rev

B. The Court Should Not Issue a Writ of Certiorari to Dec

Whether Congress Clearly Intended to Precluac Rem

~

Under Section 1983

III. The Petition Should Be Denied as to the Section 405(h) Questior 2

lV. The Petition Should be Denied as to Waive! f Exhaust

Administrative Remedies Under Sect 4 u ZZ

ae. BEd. 6 . Beare 28

TABLE OF AUTHORITIES

Page

Cases

Adams v. Weinberger, 548 F.2d 239 (8th Cir. 1977) 2.2... 0. ee eee oa

Albnghi v. Longview Police Dept., 884 F.2d 835 (Sth Cir. 1989) ....... Pe aa onn toate

Bailey } Sullivan 885 I 2d $2 3d ( IT. 1989 ce. +2 «a ew ew a 24

Bowen v. Cuy of New York, 476 U.S. 467 (1986) ... weer 8, 22-28

Brotherhood of Locomotive Firemen & Enginemen v. Bangor

& Aroostock R.R., 389 U.S. 327 (1967 es 1S

Califano v. Yamaaski, 442 U.S. 682 (1979 8

City of New York v. Heckler, 578 F. Supp. 1109

E.D. N.Y. 1984 25

Cay oy ew Yorn v. Freceer, 142 F.20 729 (20 Cir. 1984) .. 0. ees 27

Cohen v. Beneficial Industral Loan Cor,

ae at EE COORG Cah we 6 oe A eee a ae ee ae 27

Council for Periodical Distributors Ass’ns v. Evans,

eee eee ee OO GA. BOT). og occ hk yb ew ocd ew wk OS aaron 12

Department of Banking v. Pink, 317 U.S..264 (1942)... 0.0.0.0... 0.0 cee eee eee 2

Soe We eee, ee @ ae Oe Cae ar, PBT) ww cc acces eer uaanaseunrs 9, 10, 13

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989) .......... vy) ST

Grant v. Shalala, No. 91-5675 (3d Cir. March 5, 1993) ............. 0.0 cee eee 23

H. Chnstiansen & Sons v. City of Duluth, 225 Minn. 475 (1948) ............000.. 10

Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251 (1916) 2.0.0.0... 00.00 005. 1S

ey We. ED Sy, Plas kis ba he eo ke boo be Oe we eae ea 1]

I}]

Hyatt v. Heckler, 807 F.2d 376 (4th Cir. 1986),

cert. denied, 484 U.S. 820 (1987) ...........205.. Pigs 24

International Society for Krishna Consciousness v. Air Canada,

ihm &-.ge €e ae.) ) eee

Jones v. Califano, 576 F.2d 12 (2d Cir. 1978) ...... 2

Jose P. v. Ambach, 669 F.2d 865 (2nd Cir. 1982) .... 12

Kuehner v. Schweiker, 717 F.2d 813 (3d Cir. 1983),

vacated and remanded on other grounds, 469 U.S. 9

Marcus v. Sullivan, 926 F.2d 604 (7th Cir. 1991) a 24

Mathews v. Eldridge, 424 U 319 (1976) .. 2... 24

Menial Health Ass'n v. Heckler, 720 F.2d 965 (8th Cir. 1983

Middlesex County Sewerage Authority v. National Sea

Clammers Ass’n, 453 U.S. 1 (1981 2

Monroe v. Pape, 365 U.S. 167 (1961)

NCAA v. Tarkanian, 488 U.S. 179 (1988

New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990 23

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968

Patsy v. Bd. of Regents of State of Florida, 457 U.S. 496 (1982 Z

Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1954),

remanded 476 U.S. 1167 (1986),

on remand, 804 F.2d 456 (8th Cir. 1986),

cert. denied, 482 U.S 927 (1987) ..... 23

Rosado v. Wyman, 397 U.S. 397 (1970) 2.2...

Schweiker v. Chilicky, 487 U.S. 412 (1988)

Smith v. Robinson, 468 U.S. 992 (1988) 2... .. ce 13, 17-2

Sullivan v. Finkelstein, 496 U.S. 617 (1990) 2... .. >|

Sullivan v. Zebley, 493 U.S. $521 (1990). Sa re »3

Srv. Ae a. A ee es ee CD bs eG a ew aa eke eee 17,19

ae Se he PE ROED «hvac so 5c 0 4 a RES 4EE SOS Re Ee EE 15

Weinberger v. Salfi, 422 U.S. 749 (1975) ........ Ser Siok Hee ee ee en 26

Wilder v. Virginia Hospital Assoc., 496 U.S. 498 (1990) 2... eee 18, 2]

Wright v. Roanoke Redevelopment & Hous. Auth.,

en I SG RS ask a a we ere ka ow Sw et ae a ea RC 18, 19

Statutes and Regulations

28 U.S.C. § 133 (

28 U.S.C. § 136 7

28 U.S.C. § 1367

28 U.S.C. § 2412 2

42 US.C. § 405(g passin

42 U.S.C. § 405(t 9 24.0

42 US.C.

42 US.C.

42 US.C.

42 U.S.C.

42 USC. §

20 C.F.R.

20 C.F.R.

20 C.F.R.

§ 421(e ?

§ 42] ik 206

2, «eee aS ee eee pape art tian Pane Tn) . passim

OPN ait ge a -tegrc ece cr ot ac one Aa ae ed ae ae

Pt. 404, subpt. P, App. 1, Listing 12.09 6, 7

Pt. 404, Subp. P, App. 1, Listing 112.09 .....

GOERS he hg ak 4 eC Ae OL ee eee

er a yo ee ee eo

MOP CES 2s eee

BCEA. CA ee | 12

56 Fed. Reg. show (ey TG, TP8E} nec ee

Minn. Stat. § 268A.03(d) .....

Miscellaneous

Staff of House Comm. on Ways & Means. 102d Cong.. 2d Sess.. Overview

Programs 6] (Comm. Print 1992 ee

Nos. 92-1392 and 92-1395

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

DONNA E. SHALALA, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER,

V.

DANIEL J. SCHOOLCRAFT, ET AL., RESPONDENTS.

WALTER ROERS. in his official capacity as Director of

the Disability Determination Services: R. JANE

BROWN, in her official capacity as Commissioner of

the Minnesota Department of Jobs and Training, PETITIONERS.

VW.

DANIEL J. SCHOOLCRAFT, ET AL... RESPONDENTS.

On Petitions For Writs Ot Certiorari To The

United States Court Of Appeals For The Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully submit this brief in opposition to the petitions for

writs of certiorari submitted on behalf of the Secretary of Health and Human Services

(Secretary) and the state agency officials.

JURISDICTION

The Secretary and the state petitioners each filed applications for an extension

of time to file their petitions for a writ of certiorari. Justice Blackmun granted those

applications in two separate orders, extending the time to February 8, 1993.

The Solicitor General, "on behalf of the Secretary,” filed a second application

for an extension of time to file her petition. Application at 1 (January 1993). On February

1, 1993, Justice Blackmun granted the Secretary’s application, extending the time for the

Secretary to file her petition to February 22, 1993. The Secretary's petition was subsequently

filed timely.

The state petitioners, unlike the Secretary, never filed an application for an

extension beyond February 8, 1993, although ihe Secretary’s application notes that: “The

Attorney General of Minnesota joins in this [the Secretary’s] application.” /d. (emphasis

added). In any event, Justice Blackmun’s February 1, 1993 order, by its terms, extended only

the Secretary’s time to file.

The state petitioners took no further action to obtain an extension beyond

February 8, 1993. Their petition, which was filed on February 22, 1993, was untimely and

should be dismissed on this ground alone. Department of Banking \. Pink, 317 U.S. 264, 208

(1942).

STATEMENT

Respondents brought this class action for declaratory and injunctive relief on

behalf of applicants and recipients for Social Security disability benetits and Supplemental

Security Income, who allege that they are unable to work in whole or in part because ot

alcoholism or some other drug dependency, and whose claims had been demed at the initia

or reconsideration level of the administrative appeal process. C.A. App. 13.' They alleged

that the standard used by the state Disability Determination Service (DDS) to evaluate their

claims differed from the standard used by the Secretary’s Administrative Law Judges (AI_Js),

and was inconsistent with the Social Security Act as it had been interpreted by the Eighth

Circuit in Adams v. Weinberger, 548 F.2d 239 (8th Cir. 1977). C.A. App. 21. They also

claimed that the state agency failed to gather and develop evidence fully as required by the

Act. Jd. Finally, they asserted that the Secretary’s policies and procedures violated their

rights to equal protection and due process guaranteed by the United States Constitution.

Id. at 21-22.

When respondents filed their complaint in January, 1990, they sued only the

Secretary of Health and Human Services: they did not assert any claims against the state

agency Officials. Jd. at 11. The evidence then available to respondents suggested that the

—

challenged policies were attributable to the Secretary. The Secretary, for example, had

advised the ALJs in her Office of Hearings and Appeals of the Eighth Circuit’s decisions

governing the evaluation of alcoholism, but had never similarly advised state agency

employees.’ Subsequent discovery suggested, however, that some of the systemic problems

relating to the gathering and development of evidence were attributable to the state agency.

'C.A. App. refers to the Joint Appendix filed in the court of appeals. C.A. Supp. App.

refers to the Supplemental Appendix attached to respondent Schoolcraft’s Eighth Circuit

brief.

* The official manual used by the Office of Hearings and Appeals advised ALJs in

Minnesota about significant 8th Circuit case law. C.A. Supp. App. 14-16. In stark contrast.

supervisory employees at DDS testified that they had not been aware of the Adams decision,

and had not been instructed by SSA that, in evaluating a claim of disability on the basis of

substance abuse, they must determine whether a claimant can voluntarily control his use of

the substance as required by Adams. C.A. App. 360-63, 367-71.

a

A

Since the district court had ordered that all amendments be filed before April 1, 1990,

respondents amended their complaint to assert a claim against state agency officials. Docket

No. 15, C.A. App. 4; C.A. App. 88.

Although the petitioners describe the multi-level administrative review

procedures in some detail, they omit two iinportant points. First, two-thirds of all disability

claimants do not appeal beyond the initial and reconsideration decisions made by the state

DDS officials. Staff of House Comm. on Ways & Means, 102d Cong., 2d Sess.. Overview

of Entitlement Programs 61 (Comm. Print 1992) (hereafter 1992 Green Book). Secor

disability claimants must wait an average of 14 months for an ALJ decision. C.A. Apy

259-262. Thus, even those claimants who do appeal are seriously harmed by erroneous s

agency decisions.

The petitioners misrepresent respondents’ position in two ways. First. «

respect to the underlying claim, respondents do not allege that “a claimant must

conclusively deemed disabled once it is determined that he or she ‘is addicted and has lost

the ability to voluntarily control the use of alcohol/drugs.”” Secretary's Petition tor a W1

of Certiorari (hereafter Sec. Pet.) at 9. Respondents have clearly acknowledged

Social Security Act requires "a causal relationship between an impairment and the in

to work." Appellants’ C.A. Brief at 7. Respondents claim that a claimant ts eligible

disability benefits if he or she is addicted, has lost the ability to voluntarily control the use

of alcohol, and as a result, is unable to work.

Second, the Secretary continues to argue that "[rlespondents asserted that the

errors allegedly made by Minnesota DDS were being corrected by ALJs.” Sec. Pet. at 2

This is patently false. Respondents repeatedly argued the contrary in both the district co

a

reconsideration levels. The ALJ did not consider either whether DDS had adequately

}

gathered and developed the record or whether DDS had applied the proper standards w

evaluating Mr. Drumbeater’s disability

Moreover, the ALJ hearing did not provide any means tor preventing

7 «sh tina +

recurrence of the irreparable harm Mr. Drumbeater suffered while waitin g for his hearing

When DDS employees review his continuing eligibility, they will once again app

practices and procedures that respondents challenge in this litigat

Finally, the petitioners fail to mention that, while the appeal was pending

the Eighth Circuit, the Secretary published proposed amendments

Tr on >i)? n S 7. rT. 2212 | | 1 ] T} .

impairment regulations. 56 Fed. Reg. 33,130 (July 18, 199 The lis

addiction disorders is currently a “reference” listing. 20 C.F.R. Pt. 404. s P. A

de ) | ace ’ — mel es — ; _

Listing 12.09. Instead of identifving clinical signs and sympt . i subs

disorder. it refers to other mental impairments that are to be used to determine w

claimant who suffers from a substance addiction ts eligible tor disab

Phe proposed Listing 12.09, renamed ‘substance depends SIS

longer a reference listing. Rather, for the first me, it lists the signs and symptoms

substantiate the presence oO! a lisabling substance Gependence disorac ao re Reg

33,142. When the new Listing 12.09 is adopted, there will at long last b¢ sp

regulation that establishes a framework for finding a chumant disabled Dased

4

alcoholism alone.

4° . :

Che Secretary has already published a new listing tor substance dependence disorders

in children which parallels proposed Listing 12.09. 20 C.PLR. Pt. 404. Subp. PL AY

Listing 112.09 (1992)

n addition to creating a separate listin

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REASONS FOR DENYING

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any other circuit,

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whether state agency officials who make disability determinations act under col

ir the pur

poses of 42 U.S.C. § 1983. The

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issue into one of major proportions and dire consequences for the entire Social Se

system, in the hopes of convincing this Court to grant review and, in essence, overrule

v. City of New York, 476 U.S. 467 (1986). As we show more fully below, whether

j

state agency officials act under color of state law, respondents have stated valid claim

against the state petitioners over which the district court had jurisdiction. Even if

question relating to section 1983 were of greater significance, the Current posture Of this cas

makes it inappropriate for review. Rather, the Court should permit the case

remanded to the district court for completion of discovery and trial, or, as we

a likely early settlement.

Whether or not the Court grants the petitions tor certiorar: with resp

section 1983 question, the Court should deny review with respect to waiver of exhaust

administrative remedies under 42 U.S.C. § 405(g). The Secretary concedes that there ts 1

split in the circuits as to this question. To the contrary, the appellate

this Court’s unanimous decision in City of New York without ditticulty or disagt

Secretary’s contention that the Eighth Circuit's decision is contrary to Ci Vew )

wholly without merit.

II. The Petitions Should be Denied as to the Section 1983 Questions.

A. The Color of State Law Issue Does Not Warrant Review

The Eighth Circuit recognized that respondents had stated a claim against the st

petitioners under 42 U.S.C. § 1983. "Claimants allege that these state officers in then

capacities, acting under color of state law, violated federal law and the

Constitution by failing to apply the proper criteria.” Sec. Apy

allegation, the court concluded that there was federal Question jurisdichion to consider the

claims. Jd. In reaching this conclusion, the court rejected the state petitioners’ argument

that 42 U.S.C. § 405(h) bars federal question jurisdiction over them. /d. at 16a. The Court

noted that section 405S(h) applies only to officers and employees of the federal government,

and held that the state officials were neither. /d. at 17a. In a footnote to this last holding.

the Eighth Circuit stated that “we disagree w

-

1 the holding of the Second Circuit that the

state defendants are acting solely as agents of the United States. See Ellis v. Bhum, 643 F.2d

68 (2d Cir. 1981)." Jd

In Ellis v. Blum, supra, the Second Circuit, like the Eighth Circuit here, was

reviewing a dismissal for lack of jurisdiction. Although analyzing the issue differently, the

Second Circuit agreed with the Eighth Circuit that section 403(h) did not preclude federal

question jurisdiction over the plaintiffs’ claims. Based upon the record before it, however,

the court concluded that the state officials were acting under color of federal law and

therefore could not be sued under sec 1983

For the following reasons, this Court should not grant the petitions tor

certiorari to resolve this minor disagreement between the circuits

] If the state petitioners do not act under color of state law, respondents

Tr) ,T ? aa ] 2) 2 | TY 7 > 7 ‘ ii S / } > » ,s> > y

can proceed with their claims against them under 42 U.S.C. §405(g). The petitioners eac

emphasize the close relationship between the Secretary and the state agency. Alth

neither expressly claims that there is an agency relationship, the state petitioner argues that

"there is a seamless integration of the DDS into the benefit adjudication process under the

Act with truly plenary control of the DDS by the SSA.” State's Pet. at 13. The Secretary

argues that the state officials "act on behalf of the Secretary and therefore stand in the shoes

of her officers or employees ...." Sec. Pet. at 21 (citing Ellis v. Blum). Both petitioners

rely on the federal regulations which provide that a decision of the state agency at the init

and reconsideration levels is the determination of the Secretary. 20 C.F.R. §§ 404.1613

416.1013(a). Under the petitioners’ reasoning, respondents could bring their claims against

the state agency officials pursuant to 42 U.S.C. §405(g).”

Furthermore, the supplemental jurisdiction statute now provides an alternative

basis for bringing claims against the state DDS agency as a pendent party in fec

28 U.S.C. § 1367(a) (effective Dec. 1, 1990). Social Security claimants can bring a state law

y

claim that DDS is violating federal law as part of a related action in federal court against

the Secretary under section 405(g). See, e.g.. H. Christiansen & Sons v. City of Duluth, 225

Minn. 475, 483-84 (1948) (recognizing a state law cause of action tor violations of a federa

statute); see also Kuehner v. Schweiker, 717 F.2d 813, 828 n.17 (3d Cir. 1983) (Becker. J

concurring), vacated and remanded on other grounds, 469 U.S. 977 (1984). Given these

alternative bases of jurisdiction, the petitioners’ claims of the disastrous consequences to the

Social Security system unless this Court issues a writ of certiorari simply have no merit

The insignificance of the state action issue in this context is further

demonstrated by the fact that both the Second Circuit in Ellis and the Third Cirer

Kuehner v. Schweiker, supra, found that there was indeed federal question jurisdiction unde

28 U.S.C. § 1331 over the Social Security claimants’ causes of action against the state agenes

Officials.” Thus, the bottom line reached by the Eighth Circuit, namely, that Social Security

*The requirement of a "final" decision would be waived for the same reasons it was

waived by the Eighth Circuit as to respondents’ claims against the Secretary. See vifra Part

IV, pp. 22-28.

‘The Second Circuit found 1331 jurisdiction because the claims against the state agen

> } “")

were separate and distinct from the claims against the Secretary. Ellis, 0643 F.2d at 76. In

(cCOntUNUecd

10)

claimants could bring a cause of action against state agency officials challenging the

procedures that they use to evaluate claims of disability, is fully consistent with the result

reached by all of the circuits that have considered the issue. The Social Security disability

system remains fully operational, despite the fact that state agency officials have been and

continue to be subject to suit.

y Since respondents can proceed with their claims against the state

petitioners even if they did not act under color of state law, whether this case is "cert.

worthy" depends in part on the differences between bringing the claims against the state

petitioners under section 1983 and section 405(g). There are two ditferences: the first

relates to attorney's fees, and the second to the doctrine of exhaustion of administrative

remedies. As we show below, neither is significant.

In any action brought pursuant to 42 U.S.C. § 1983, a prevailing plaintiff has

a claim for attorney's fees under 42 U.S.C. § 1988. Section 1988 attorney's fees are generally

awarded to prevailing plaintiffs, unless “special circumstances would render the award

unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting Newman v. Piggie Park

Enterprises, 390 U.S. 400, 402 (1968)). Whether or not fees would ultimately be awarded

against the state agency is a matter of pure speculation. If after a decision on the merits,

it is determined that the state agency was merely complying with the Secretary’s instructions,

the state agency could argue that fees under section 1988 should be denied because the state

7(...continued )

Kuehner, the Third Circuit found 1331 jurisdiction over the claim that the state agency,

consistent with the Secretary’s instructions, was violating the Social Security Act. 717 F.2d

813, 816-17 (3d Cir. 1983), vacated and remanded on other grounds, 469 U.S. 977 (1984).

Here, discovery is likely to establish that some of the claims against the state agency are

distinct from the claims against the Secretary.

*

1]

was free of any culpability. See, e.g., Council for Periodical Distributors Ass’ns \. Evans, 827

F.2d 1483, 1487 (11th Cir. 1987); Jose P. v. Ambach, 669 F.2d 865, 871 (2nd Cir. 1982). The

court might well hold the Secretary, rather than the state agency, liable tor attorney's fees

under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Even if tees were awarded

against the state agency, they would likely be reimbursed by the Secretary ~ See 42 U.S.C

§ 421(e); 20 C.F.R. §§ 404.1615(g), 416.1015(g). Given the wholly speculative nature ot the

attorney’s fees question, the possibility that some day, in some case, some court might grant

attorney’s fees against a state DDS office does not justify review of the state action Issue by

this Court in this case.

The second difference between bringing a claim against the state agency unde!

section 405(g) and section 1983 is that section 405(g) contains a statutory, although waivabdle,

requirement of exhaustion of administrative remedies, while under section 1983, exhaust!

is not required. Patsy v. Bd. of Regents of State of Florida, 457 U.S. 496 (1982 In cases like

the instant case where the claim involves the practices and procedures used by the state

DDS office at the initial and reconsideration levels only, and is collateral to any claim tor

benefits, exhaustion is not required under section 405(g). See infra Part IV pp. 22-28. Thus,

whether the state DDS officials act under color of state law and are sued under section 1983,

or whether they are sued under section 405(g), exhaustion of administrative remedies would

not be required.

8In Boring v. Sullivan, No 2:91-0429 (S.D.W.Va.), for example, a class of Social Security

claimants challenged the failure of the state DDS office to assure that evaluations of residual

functional capacity are performed by a physician, as required by federal regulations. Atte

the district court denied the defendants’ motions to dismiss, the parties stipulated to a

settlement on the merits. Subsequently, the parties agreed to an amount of attorneys’ tees,

all of which were paid by the federal government.

The conclusion that state DDS officials act under color of state law under

section 1983 would not open the floodgates to thousands of lawsuits by unhappy Social

Security claimants. Where a claimant alleges only that the state agency's decision denying

benefits was inconsistent with federai law, and that the decision should be reversed, a section

1983 action would be foreclosed on the ground that the Social Security Act provides the

exclusive basis for review of the decision to deny benefits. See Smith v. Robinson, 468 U.S.

992 (1988).

The Secretary argues that allowing section 1983 actions against a state DDS

office could disrupt the administration of the disability programs in two ways. Sec. Pet. at

17-18. Both are contrived. First, she argues that exposing state officials to lawsuits could

discourage states from participating in the Social Security programs, irrespective of the

potential liability for attornev’s fees. The Secretary ignores the fact, however, that the

Second Circuit in Ellis and the Third Circuit in Kuehner held, in the early 1980s, that Socia!

Security claimants could sue state DDS officials. A handful of other state DDS officials have

been sued in federal] district court in the intervening years. See Sec. Pet. 17 n.10.

Nonetheless, we know of no state that has stopped administering the disability programs.

States have strong incentives to perform Social Security disability determina-

tions. Administering the Social Security disability system gives the states thousands of jobs

to fill, all of which go to their own residents. Furthermore, it is in the state’s financial

interest to see that all persons eligible for Social Security benefits receive them. Persons

found ineligible for Social Security disability benefits often receive assistance under state-

funded welfare programs. In Minnesota, the statute which authorizes the Department of

Jobs and Training to perform disability determinations provides: "It is the purpose of this

relationship [with the Social Security Administration] to permit the citizens of this state to

obtain all benefits available under federal law... ." Minn. Stat. § 268A.03(d).

The Secretary’s second argument is no more persuasive. She argues that the

Eighth Circuit’s decision would frustrate Congress’s goal of uniform administration of the

Act. Again, the Eighth Circuit’s decision has no impact on the question of uniformity.

There is no greater risk to uniformity when a court orders a DDS official to comply with the

Social Security Act and regulations than when a court orders the Secretary to comply. T

the contrary, litigation against DDS officials is likely to promote uniformity among the

different states and among the different decision-making levels.

a. The court of appeals here was reviewing the dismissal of respondents’

claims against the state petitioners tor lack of jurisdiction. The facts in the record, viewed

in a light most favorable to the plaintiffs, clearly support the Eighth Circuit’

infra Part II.A.4., pp. 15-16. The state action question is, however. a mixed question of law

and fact to be determined at trial. See, e.g., Albright v. Longview Police Dept., 884 F.2d 835,

838 and n. 1 (Sth Cir. 1989); International Society for Krishna Consciousness v. Air Canada,

727 F.2d 253 (2d Cir. 1984) (interlocutory appeal dismissed as improvidently granted). The

parties should be permitted to complete discovery and present evidence on the issue

The disagreement between the Second and Eighth Circuits on the “color ot

law" issue may not in fact be irreconcilable. Since both courts reached their conclusions on

appeal from a dismissal for lack of jurisdiction, neither court had the benefit of full

development of the relevant facts. When presented with the same fully developed factual

t

record, the two courts of appeals might agree that the state DDS officials do (or do not) act

under color of state law. Thus, even if this Court considers the question of whether the state

petitioner acts under color of state law or exclusively under golor of tederal law to be of

great importance, the Court should wait until after the final decision on the merits when the

record will be fully developed. See Brotherhood of Locomotive Firemen & Enginemen \.

Bangor & Aroostock R.R., 389 U.S. 327, 328 (1967): Hamilton-Brown Shoe Co. v. Wolf Bros.,

240 US. 251, 258 (1916).

4. Finally, the petitions for a writ of certiorari should be denied because

the decision below on the state action issue was clearly correct. Section 1983 applies to

every person who acts “under color of any statute, ordinance, regulation, custom, or usage

42 U.S.C. § 1983. The suggestion that state agency officials do not act under color

of state law is counterintuitive. The State of Minnesota has, by statute, chosen to administer

the Social Security disability programs at the initial and reconsideration levels. Minn. Stat.

§ 268A.03(d). The Secretary would not permit a private entity to perform the functions

carried out by the DDS office: the alleged wrongful conduct by the state agency is possible

only because it is a state agency, clothed with the authority of the state. 42 U.S.C. § 421(a):

U.S. v. Classic, 313 U.S. 299, 326 (1941).

Petitioners’ argument here that the state officials do not act under color of

State law is analogous to arguing in NCAA v. Tarkanian, 488 U.S. 179 (1988), that the

University of Nevada did not act under color of state law when it sanctioned Tarkanian in

accordance with the NCAA's "recommendations." Despite the acknowledged power and

influence of the NCAA, both the majority and the dissent agreed that the University officials

had acted under color of state law. 488 U.S. at 183, 199. The state petitioners, like the

University of Nevada, have agreed to comply with the regulations and guidelines of another

entity. Like the University, the state petitioners retain several options. They can simply

cease making disability determinations as to some or all categories of disability claims

Alternatively, they can continue to administer the disability programs and work within the

federal quality assurance program to alter federal policies with which it disagrees. The state

petitioners, like the University, act under color of state law.

The state petitioners clearly carry the state’s "badge of authority.” 7arkanian,

488 U.S. at 191 (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). When DDS writes t

a claimant to set up a consultative exam, to request additional information, or to get

permission to obtain confidential information, it does so on official state agency stationen

C.A. App. 374. When DDS refers a claimant to a consultant it sends the consultant a state

agency form advising the psychologist of the information needed. /d. at 372-73. DDS

personnel are guided not only by the regulations and manual material issued by the

Secretary, but also by a state agency manual, containing, for example. policies governing

when a claimant should be referred to a consultant. C.A. App. 366. Petitioners have cited

no decisions by this Court which support the startling proposition that state employees

working in a state agency can be considered anything other than state actors. The decis!

of the Eighth Circuit permitting respondents to proceed with their claim against the state

petitioners under section 1983 was correct.

B. The Court Should Not Issue a Writ of Certiorari to Decide Whether Congress

Clearly Intended to Preclude « Remedy Under Section 1983.

The state and federal petitioners also argue an alternative ground tor rejecting

the court of appeals’ decision that respondents have stated a claim under 42 U.S.C. $1983

Sec. Pet. at 18-19; State Pet. at 10-11. The petitioners argue that the Social Security Act

establishes a remedial scheme which demonstrates Congress’ intent to preclude a section

1983 remedy. On this issue, however, unlike the narrow question of whether the state

16

petitioner acts under color of state law, the petitioners cannot even allege a conflict among

the circuits. Further, the Secretary does not assert that the Eighth Circuit’s decision conflicts

with any decisions of this Court.”

As a threshhold matter, the petitioners did not adequately preserve the

question of whether Congress intended to foreclose a secticn 1983 action here. Both

petitioners made this argument for the first time in their petitions for rehearing in the Eighth

Circuit.” The Secretary argued that the comprehensive remedial schemes established by

Congress foreclosed an action under section 1983. Secretary’s Petition for Rehearing at 8 -

10. She relied. however. on dictum in Suter v. Artist M., _ U.S. _. 112 S.Ct. 1360 (1992) and

on Schweiker v. Chilicky, 487 U.S. 412 (1988). a case addressing whether a Bivens claim tor

}

Id be brought under the Social Security Act: she tailed even to cite Smith \

damages cou

Robinson, 468 U.S. 992 (1984). or Middlesex County Sewerage Authority v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981), the cases upon which the Secretary now relies. The state

officials, raising the same argument, cited a footnote in Suter, supra, and noted that the Surer

court had in turn cited Smith v. Robinson, supra and National Sea Clammers, supra. State's

Petition for Rehearing at 4.

” The state petitioner, but significantly, not the Secretary, argues that the decision of the

Court of Appeals "is inconsistent with this Court’s decision in Suter v. Artist M., _ U.S._, 112

S. Ct. 1360 (1992)." State Pet. at 10. In Suter, this Court found that Congress had not

established a federal] right enforceable by section 1983. The state’s reliance on Suler is

misplaced, since the Social] Security Act clearly contains enforceable federal rights.

In his opening brief, the Secretary had discussed the comprehensive scheme created

by Congress to review individual disability decisions (42 U.S.C. § 405(g)), but only in

connection with her argument opposing mandamus jurisdiction under 28 U.S.C. § 1361. As

in the district court, the Secretary did not address the court’s jurisdiction over the claims

against the state agency at all.

Even if petitioners managéd to preserve the argument by making it, howeve

inadequately, in their petitions for rehearing, the Eighth Circuit did not address this 1s

Furthermore, none of the other circuits has addressed the issue. This Court should not gra

review to address an issue that has not been decided by a single circuit. See Califan

Yamaaski, 442 U.S. 682, 702 (1979) (preferable to allow several circuits to pass

to gain benefit of analysis of different courts).

Petitioners’ arguments are, in any event, plainly wrong. This C

repeatedly held that section 1983 should be broadly construed. E.g., Golden State Tra

Corp. v. Los Angeles, 493 U.S. 103, 105 (1989). Consistent with this principie, the Durce

to demonstrate that Congress has expressly withdrawn the [1983] remedy ts

defendant." Jd. at 107; see Wilder v. Virginia Hospital Assoc., 496 U.S. 498, 320-2

This burden is very difficult to meet. This Court has repeatedly

it will "not lightly conclude that Congress intended to preclude relianc Sc ‘

a remedy for the deprivation of a federally secured right.” Wilder, 490 US. at 520; G

State Transit, 493 U.S. at 107; Wright v. Roanoke Redevelopment & Hous. Auth, 479 US. 4

423-24 (1987); see also Smith v. Robinson, 468 U.S. 992, 112 (1984 Absent an expr

statutory provision precluding section 1983 entorcement, the Court has found

enforcement foreclosed only when the statute itself creates a remedial scheme

‘sufficiently comprehensive . . . to demonstrate congressional intent to preclude the rem

of suits under § 1983." Wilder, 496 U.S. at 521 (quoting Middlesex County Sewerage Aue:

v. National Sea Clammers Ass'n, 453 U.S 1, 20 (1981)).) Petitioners cannot meet

burden by showing that the statute includes a remedial mechanism different tron

enforcement under § 1983; rather, "the statutory framework must be such that ‘[a}llowing

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has never exercised the statutory authority to take over the

Clearly, this does not approach the kinds of comprehensive

evidence Congress's intent to foreclose a section 1983 acti

Nor does a

—

claimant's ability to

evidence Congress's intent to foreclose a section 1983 acti

procedures used by a state DDS agency at the initial and re

ALJ level, an appeal under 42 U.S.C. § 405(g) determines

whether the claimant is eligible for benefits. The

de novo; the state agency is not a party the sole iss

administrative appeal under section 405(g) simply does t

DDS agency has systematically violated federal law

Section 405(g) enables a cla

its face authorize an ;

detendant under sec

tvwon

405(2), which petitioners d

received a decision following a hearing would be unable

by the state agency only at the initial and reconsideration le

benefits at the ALJ level, he could no longer claim that DDS

cause of his injury. If the claimant were awarded benetits

files a complaint under section 405(g), the government wo

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are reviewed by the

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of standing. Cf. Sullivan v. Finkelstein, 496 U.S. 617, 625 (1990) (there would be “grave

doubt" whether the Secretary could appeal adverse district court judgment after award of

benefits by ALJ on :»mand). In short, a remedial scheme which fails to provide any remedy

at all against the state actor cannot possibly be considered sufficiently comprehensive to

evidence Congress's intent to foreclose a section 1983 action. Cf. Wilder v. Virginia Hospital

Ass'n, 496 U.S. 498, 522-23 (1990

Il. The Petition Should Be Denied as to the Section 405(h) Question.

The state petitioners ask this Court to grant their petition for certiorari with

ee * hathar the = penta’ feren ‘o } eB Shy & 105 \ : » Da 2

respect to wnetner thev are protected from Sult OV 42 U.S.C 405(h)}. State Pet. at i. 13-

SS

14.° Section 405(h) precludes certain actions against “the United States, the Secretary, o1

any officer or emplovee thereof.” The Eighth Circuit, relying on the plain language of the

Statute. concluded that section 405(h) did not apply to the state DDS officials. Sec. Pet.

gv the circuits as to this

question, or that the question is an important one. Their sole argument is that the Eighth

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Circuit's decision produces a result not intended by Congress. State Pet. at 13. There is

sImpiv NO Dasis for granting review as to this quesuion

The state petitioners concede that the Eighth Circuit’s reading of section

405(h) was ‘literally correct.” Jd. The only way section 405(h) can be read to apply to

‘In contrast, the administrative scheme under 405(g) would indicate Congress’ intent to

foreclose a section 1983 action by a Social Security claimant seeking only reversal of the

denial of his claim for benefits. See supra p. 13.

lay ; '

The Secretary does not state this issue as a separate “Question, but does argue that

section 405(h) precludes a section 1983 claim against the state DDS officials. Sec. Pet. at

20.

rh

;

actions against state agency officials is if they are considered to be “the Secretary” as used

in the statute. If state DDS officials are considered to be “the Secretary” for purposes ot

section 405(h), then surely they are also "the Secretary" for purposes of section 405(g). wh

creates a cause of action against the Secretary. To argue, as petitioners do, that sect

405(h) precludes respondents’ claims against the state officials without admitting that sect

405(g) would permit these claims makes no sense. For the reasons set forth in Part ILA.2

supra pp. 11-14, whether respondents can proceed against the state petitioners under sect

1983 or only under section 405(g) is of little importance to petitioners or respondents

IV. The Petition Should be Denied as to Waiver of Exhaustion of Administrative

Remedies Under Section 405(g).

Even if this Court grants the state’s petition for a writ of certiorar, and gy

the Secretary’s petition for certiorari with respect to the first question presented, the ¢

should deny review of the second question she presents, namely whether the ¢

Appeals properly relied on Bowen v. City of New York, 476 U.S. 467 (1980), to waive sex

405(g)’s exhaustion requirement. See Sec. Pet. at 1.

As an initial matter, the Secretary has not challenged the Eighth Circuits

conclusion that the district court had mandamus jurisdiction to consider respondents claims

The existence of an alternative basis of jurisdiction renders the section 405( 2) ques!

. s

unimportant. '

Ser . . . . ’

The Secretary misreads the Eighth Circuit’s decision, asserting that the court of appeals

"found it unnecessary to decide whether relief was also available under the mandamus

statute ...." Sec. Pet. at 13.n. 7. In tact, although the court found it unnecessary to discuss

mandamus jurisdiction, the court held that mandamus jurisdiction was available, vacated the

district court’s order dismissing mandamus jurisdicuion, and specifically directed the distret

court to consider the propriety of a mandamus order, relying on its decision in Menta Flea.

Ass'n v. Heckler, 720 F.2d 965, 971 n.17 (8th Cir. 1983). See. App. Ida

>”

Even if mandamus jurisdiction were not available, this Court should deny

review of the section 405(g) question. There has been no disagreement among the circuits

about the scope of City of New York.'® The courts of appeals have uniformly rejected the

Secretary's efforts to rewrite the Cin of New York decision to limit class action challenges

to the administration of the Social Security disability programs.'’ The Secretary is trying

to relitigate the issues fully settled by Cin of New York only seven years ago in an attempt

to insulate entire levels of agency decision-making from judicial review.

Furthermore, there has not been a proliferation of class actions against the

Secretary. In fiscal year 1991, there were nearly two million initial determinations on

disability claims. During the same time period, there were 4,869 federal district court

decisions on disability claims. 1992 Green Book at 61. A Westlaw search identified only ten

Ig

district court decisions in fiscal year 199] in class actions filed under 42 U.S.C. § 405(g).

Clearly, Social Security claimants themselves as well as the courts have followed the

Grant v. Shalala, No. 91-5675 (3d Cir. March 5, 1993), decided after the petitions’ for

certiorari were filed here, is not to the contrary. In Grant, a class of Social Security

claimants challenged the impartiality of one particular ALJ. The Third Circuit distinguished

City of New York and other cases which challenge a practice or policy of the Social Security

Administration. Slip. op. at 25, 28 n.15.

"In addition to the cases cited by the Solicitor General from the Third, Fourth, Seventh,

Ninth and District of Columbia Circuits, see Sec. Pet at 27 n. 19, the Second and Eighth

circuits have rejected his arguments. See New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990);

Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984), remanded 476 U.S. 1167 (1986), on remand,

804 F.2d 456 (8th Cir. 1986), cert. denied, 482 U.S 927 (1987).

"Social Security claimants have prevailed on the merits of most if not all of the class

actions in which exhaustion has been waived. Were it not for waiver of exhaustion, the

Secretary would have been permitted to violate the mandates of the Social Security Act with

virtual immunity, to the detriment of thousands of disabled children and adults. See, e.g.,

Sullivan v. Zebley, 493 U.S. 521 (1990).

admonition from this Court-in City of New York that “exhaustion is the rule in the vast

majority of cases." See 476 U.S. at 486.

The Secretary’s efforts to distinguish this case from City of New York are

plainly erroneous. She argues that exhaustion should not have been waived in this case

because respondents have not established the existence of a clandestine policy. The

claimants in City of New York, after a seven-day trial, proved the existence of a clandestine

—

policy. This Court relied on the existence of a clandestine policy solely to toll the limitations

period for class members whose administrative claims had lapsed before the class action

complaint was filed. City of New York, 476 U.S. at 480-82. Respondents here moved

time th. lead there

certification of a class whose members all had live ciaims at the time they filed then

complaint. C.A. App. 126-27. Neither this Court nor any court of appeals has held that

clandestine policy is necessary or even relevant to the decision to waive exhaustion

administrative remedies for claimants with live claims.'” See 476 U.S. at 482-450

The City of New York decision relied heavily on Mathews v. Eldndge, 424 U.S

‘r

319 (1976), in which this Court first discussed judicial waiver of exhaustion of admunistrative

remedies under section 405(g). In Eldridge, the plaintitf had challenged the tatlure of the

Secretary to provide pretermination hearings. Although there was nothing secretive about

the Secretary's regulations governing the appeal process, this Court nevertheless concluded

;

eislon

that it was proper to waive the exhaustion requirement. The Civ of New York «

adopted the Eldridge analysis, cautioning that the Eldridge tactors should not be apples

mechanically. City of New York, 467 U.S, at 484. There is no support for the Secretary s

'9See Marcus v. Sullivan, 926 F.2d 604, 614-15 (7th Cir. 1991); Batley v. Sullivan, SSS bd

§2, 65 (3d Cir. 1989); Hyatt v. Heckler, 807 F.2d 376, 379-80 (4th Cir, 1980), cer. dented, 454

U.S. 820 (1987).

24

— ca

ents challenged concededly were not binding upon the ALJs

C.A. Supp. App. at 13.

95

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Tre A Ne y A mis & \ est b SICK aggivon Te rel

“A ow C T ex IST Wilt " 7 IS ¢ C t secretive pi CY

e Secre S atte stinguls S Case Cuy of New York

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gp See Eldndge, 424 U.S |

r Eldndge, Socia) Security claimants who ex! t}

btained adequate due process hearings. This Court

deed, in its brief to this Court in City of New York, the Secretary emphasized that

ternal SSA memoranda reflecting the interpretation of the

regulations that

or the Appeals

the waiver of exhaustion, however, where "denying Eldridge’s substantive t r

reasons’ or upholding it ‘under other provisions’ at the post-termination stage A

answer his constitutional challenge.” 424 U.S. at 331-32 (quoting Weinberger v. Salfi, 422 US

749, 762 (1975)).

As in Eldridge and City of New York, denying or upholding rest

for benefits at the ALJ stage does not answer their claim that r r r

employed at the initial and reconsideration levels are illegal. M

the personal resources to pursue an appeal to the hearing stag Y

Congress has mandated, are entitled to uniform standards through

process. 42 U.S.C. § 421(k)(1). If exhaustion is not waived, "SSA ¢

. with two standards .. ., one for claimants who seek 1

who do not.” Jones v. Califano, 576 F.2d 12, 19 (2d Cir. 1978 As this (

of New York: "We should be especially sensitive to this kind of harm wi

seeks to require claimants to exhaust administrative remedies merely to ef

receive the procedure they should have been aftorded in the first place. 47 S. at 484

The Secretary’s discussion of the irreparable harm requirement s

no support in any court decision. She suggests that only where

administrative appeal process could cause a ‘severe Medical setback. as in Cu Ven

should exhaustion be waived. Sec. Pet. at 24-25. Although there were allegat

plaintiffs in City of New York would suffer severe medical setbacks it they wer

exhaust their administrative remedies, this is not the only kind of irrepar

“Only one third of the disability claimants whose applica sare demed apps t

ALJ level. 1992 Green Book at 61

justifies waiver. In Eldndge, 424 U.S. at 331, for example, this Court approved waiver of

exhaustion where the claimant "has raised at least a colorable claim that because of his

physical condition and dependency upon the disability benefits, an erroneous termination

would damage him in a way not recompensable through retroactive payments.” And in

Schweiker v. Chilikv, 487 U.S. 412, 428 (1988), this Court recognized that "months of delay

in receiving [Social Security] income on which one has depended for the very necessities of

life cannot be fully remedied by the ‘belated restoration of back benefits."" The record in

this case is replete with uncontradicted evidence of the ways in which the many months of

delay causes class members to suffer not only economic loss, but also irreparable physical

and emotional harm. (C.A. App. 128-248

Finally, with respect to the collateral nature of the relief sought, the Secretary

does not even pretend that the Eighth Circuit’s decision was inconsistent with City of New

York. Rather, she ignores the controlling decision and asserts that "the standard for

determining whether a claim is ‘collateral’ for purposes of dispensing with Section 405(g)’s

exhaustion requirement should . . . approximate the stringent standard developed for the

‘collateral order’ doctrine of appellate review enunciated in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949)." Sec. Pet. at 26.

No court has ever applied the collateral order doctrine of Cohen to the waive

of exhaustion analysis. In fact, in City of New York, the lower court had recognized that the

plaintiffs’ claims were not wholly collateral to their claims for benefits, but rather the two

were "somewhat intertwined". City of New York v. Heckler, 742 F.2d 729, 736-37 (2d Cir.

1984). Nonetheless, this Court affirmed the lower court’s decision that the plaintiffs’ claims

were sufficiently collateral to support waiver of exhaustion. The Secretary is actually urging

27

this Court to substantially alter if not overrule its decision in City of New York. It the

Secretary’s arguments on collaterality were adopted, waiver of exhaustion of administrative

) v ;

determine disability claims.

There is absolutely no basis for this Court to issue a writ of certiorari to review

the section 405(g) question raised by the Secretary

CONCLUSION

For the foregoing reasons, the petitions for a writ of certiorari st

denied.

Dated this 14th day of July, 1993

Respecttully submittec

LAW OFFICES OF THE LEGAL AID

SOCIETY OF MINN LI

-

v4

~

py tw.

Laurie N. Davison

Counsel of Recor

M. Francesca Chervenak

Kathleen M. Davis

430 First Avenue North, Suite 3

Minneapolis, MN 55401-1780

(612) 332-144]

Barbara J. Kuhn

Legal Aid Society of Minneapolis

2929 Fourth Avenue South

Minneapolis, MNt 55408

,77 4

(612) 827-3 +

28

\ Pte SY

GhigikAL = ~gigael

GGA

SUL 14 1993

Nos. 92-1392 and 92-1395 DFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

DONNA E. SHALALA, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER,

v.

DANIEL J. SCHOOLCRAFT, ET AL., RESPONDENTS.

WALTER ROERS, in his official capacity as Director of

the Disability Determination Services; R. JANE

BROWN, in her official capacity as Commissioner of

the Minnesota Department of Jobs and Training, PETITIONERS,

Vv.

DANIEL J. SCHOOLCRAFT, ET AL., RESPONDENTS.

On Petitions For Writs Of Certiorari To The

United States Court Of Appeals For The Eighth Circuit

CERTIFICATE OF SERVICE

I, Laurie N. Davison, a member of the Bar of this Court, hereby certify that on this

14th day of July, 1993, one copy of a Motion for Leave to Proceed in forma pauperis,

Declarations of Danie] J. Schoolcraft, Joseph L. Drumbeater and Kathleen M. Davis, and

Respondents’ Brief in Opposition in the above-entitled case were mailed, first class postage

prepaid, to:

Edwin S. Kneedler

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

Charles T. Mott]

Assistant Attorney General

1100 Bremer Tower

Seventh Place and Minnesota Street

St. Paul, MN 55101

(612) 296-3854

I further certify that all parties required to be served have been served.

Date: are (4 1993

aa” Sy Sa

LAURIE N. DAVISON

Counsel of Record

Legal Aid Society of Minneapolis

430 First Avenue North, Suite 300

Minneapolis, Minnesota 55401-1780

(612) 332-1441

Counsel for Respondents

PRESIDENT Law OFFICES EXECUTIVE DIRECTOR

Leanne M. Grex Jeremy Lane

E PRESIDENTS AGENCY ADMINISTRATOR

rebecca Palmer M the Roger C. Cobt

Mx hae! Sullivar

TREASURER LEGAL AID SOCIETY OF MINNEAPOLIS

Feline de la Pena

ADMINISTRATIVE OFFICE

430 FIRST AVENUE NORTH, SUITE 34

MINNEAPOLIS, MN 55401-17&%

(612) 332-1441

July 14, 1993 RECEIVED

JUL 19 1993

William K. Suter OFFICE OF THE CLERK

Clerk of the Supreme Court SUPREME COURT, U.S.

United States Supreme Court

One First Street N.E.

Washington, D.C. 20543

Re: Shalala v. Schoolcraft; Roers v. Schoolcraft

Nos. 92-1392; 92-1395

Dear Mr. Suter:

Enclosed please find a Motion for Leave to Proceed In Forma Pauperis, Declaration of

Daniel J. Schoolcraft, Joseph L. Drumbeater and Kathleen M. Davis, the original and twelve

copies of Respondents’ Brief in Opposition, and a Certificate of Service.

Very truly yours,

LEGAL AID SOCIETY OF MINNEAPOLIS

>

=” a sae

Laurie N. Davison

Licigation Director

LND:bbo

Enclosures