# Opposition Brief — Roers, Director of Minnesota Disability Determination Services v. Schoolcraft > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2152%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1081 ## Text 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 tate SLAGLE mf UOll Ci ey ex their < +vr va for Soc srctitiyit: PiISULILULEA =| +a oer ede oa he é ctate Xv ee . 2 eo rer ‘ yu _ mS § C WOUIC tre A U v L _+4+ Vl v + . AVL A QUESTIONS PRESENTED Zes respondents to sue Ol I nitiai and reconsideratuiol even if respondents could not proceed under 42 U.S.C. § evertheless had jurisdiction to consider respondents’ claims \ he court of appeals was correct In waiving exhaustion of ss Of Socfal Security disability claimants, where, abse WOL ever be subject to judicial scrutiny, where requiring Die Nat where respondents claims were collateral t < 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 - } ¢g for substal 11) ‘ ) 1% ; y ft eh Aili? r ,] Wi reqt re COnS1IGeTa ym OF he avd ivVto control t 7 } ; ‘ +} ] } Tala’ ; ICUUITCLK OV 4aa Pas © tric SLC SILTIN : jar in th ANrANAce ren ; : T , Ar mor GQisOTae’r ih the fT rOp Seu Pula S iM ( I I 5 I > D 4 4 cAntrTaA e J ; bh Isfian ‘ | I rt {) CONTT( UN itd ‘ C CUA CU al « ee ™. Z < 1. Ul ArATTY rAhAN f +h ATrANnnAceA r ‘ Crem trace 2) UIiLalit t S PIOPUOSCL uit LOE me ‘ +5 ann ‘ ; ring th, ry r + ¢ trevor ave laKel ‘ LL UL i pr Sie .\ » Libicit *h« noerhkina _— ‘ UlilULiiy L Ulc » ' f cin y ; y . i ‘Cc C \ C fOvVe! C GC eC e Sec>re C C \ hr ediire recnnan = 1, ~ ¢ = ~ > ~~. Ss iva its} We » ws Y . sé . 7 T lh; erretan —— ram } +} ’ ‘ i C Sec Lidl’ c« Cc Sii\ c CU S UlS < u Ss expense , © C i! \ YC A C C rT } tnnnara » ‘ , : ; < } L S ot ‘ Us « eS % - < < < 2 tas REASONS FOR DENYING Introduction . as . mre ann ma recnect tT) i ‘YENI CITCUILS dNQ, IN dail TESPECtsS, TULYV CONSIS ice dependence diso he use e) | alcol a sudstance dad ‘ mn ‘op ; go tt ‘ + . C UPSUCCESNLL CTIOTIS LO ¢ . > — KWrvt rr ¢ . subpt. P, App. 1, Listing 1 her hy 1) COmMmpiles W 4 P\VPrT ) _- ~~ FK \ . Iictr ; UIStU IA \ + ¢} > LHI Cla THE WRIT L C de QO] un rt specific V Stall e\ tlon process , ects at 1\ CONnSIStTeN sions Of this Court any other circuit, Or oO] ] ,. ] > aly > . fF TY ° ] rive . as ) whether state agency officials who make disability determinations act under col ir the pur poses of 42 U.S.C. § 1983. The rde r i S . 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 TT}, \ i \ ~ , vy ¢ * . ( ¥ ; US ae A ;* ; f pid remMmeni- < CuUit ‘ » ‘ Ut » ryTy< ~ 5 j ' ; ' ’ Q& ice { decisions, like those at issue here. Finally, to the best 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 1 “Respondents attempted to find out what percentag are reviewed by the deposition, Vol I] al Secretary, but the deposmuon wito <>» -- This question, hike many others, 5 me > ics C { \ \ Cis ymilti 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 | 1 } ¢ € : oT fe «1 mn rT ; 2 ‘ 2 ) " _ " > re Q; > ) Pe ] > " 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 ~~ 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 < ch S ‘ ‘ SC SIN 4¢ xX! > WOuld De < ECS \ \ A ( Ne } ¢ ‘Sis W \ 5 , \ a « ‘\ 3 \ Wwe \ \ } h S7S F.S: < \ 4 ‘ \ york Ss Ww 2 e tl { 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2152%3A3. Public record. Not legal advice.