Petition for Writ of Certiorari — Spragens v. Shalala

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OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

PAUL E. SPRAGENS,

Petitioner,

Vv.

DONNA E. SHALALA, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WALTER A. SMITH, JR.*

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5728

* Counsei of Record Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether heigintened judicial scrutiny of laws that

differentially treat disabled persons is warranted by

virtue of Congress’ enactment, pursuant to its powers

under Section 5 of the Fourteenth Amendment, of the

Americans With Disabilities Act of 1990.

2. Whether the federal government's determination

to cut off all Social Security disability benefits to most

disabled persons earning more than $300 per month, but

to allow all blind persons to earn $650 per month before

losing benefits, violates the equal protection component

of the Due Process Clause of the Fifth Amendment.

TABLE OF CONTENTS

Page

Ls i

ESE Ce l

a aa dhseesckanepeecneisceousesesecteonvonsecces l

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ............ 2

ES EES 2

REASONS FOR GRANTING THE PETITION................ 6

ics Crcurssvsssesnrennennscnvaceesecsersccneces 20

Nee ivesisudraneenses spoenecensesecoeee la

Nees ccc tecendosinceseninsunecsectsosvaveveeeresnee 9a

Nees cicetiidcecepeensentsnerasesessnseeccenecees 23a

Neen cia incr daatisiescieisvescerssiseocnsenseseese 24a

ili

TABLE OF AUTHORITIES

CASES:

Alexander v. Choate, 469 U.S. 287 (1985).........:cceeeeeee

Bannum, Inc. v. City of Louisville, 958 F.2d 1354

Ge, FI ecccrntscsininsnnasicenanstnchiessnieisiiiebbibiadicormaibiaaiaianiin 16

Brennan v. Stewart, 834 F.2d 1248 (Sth Cir. 1988) ....... 12

City of Cleburne v. Cleburne Living Ctr., Inc., 473

55k Se Cee secnnnintiiniceecaninteiicnmaiccapeaaenaamianaitatitiis passim

Cleburne Living Ctr., Inc. v. City of Cleburne, 726

F.2d 191 (Sth Cir. 1984), affd in part and vacated

Be PONE, BIS Ws SR Cie licrvnintesierncininimvenivetinn 16

Contractors Ass'n of Eastern Pennsylvania, Inc. v.

City of Philadelphia, 6 F.3d 990 (3d Cir. 1993).......... 1]

Crowder v. Kitagawa, 842 F. Supp. 1257 (D. Haw.

SOPOT) rxsssiciinsaresnsnsbsibinitaieaaiedveetibesissdaienatibaatamaldalabiialasnebliibaetnadin 10

Disabled American Veterans v. United States Dep't

of Veterans Affairs, 962 F.2d 136 (2d Cir. 1992)........ 1]

Frontiero v. Richardson, 411 U.S. 677 (1973)..........:0+. 8,9

Goldberg v. Kelly, 397 U.S. 254 (1970) ........ccscccsseeeseees 14

Graham v. Richardson, 403 U.S. 365 (1971) .........::.000 8

Heller v. Dow, 113 S. Cr. 26ST (IGG) accnainrssecesecssesnsesiees passim

High Tech Gays v. Defense Indus. Security

Clearance Office, 895 F.2d 563 (9th Cir. 1990).......... 12

Jimenez v. Weinberger, 417 U.S. 628 (1974)...........0008 10, 18 :

Katzenbach v. Morgan, 384 U.S. 641 (1966) ............0.-. 9

LaMadrid v. Hegstrom, 599 F. Supp. 1450 (D. Ore.

1984), affd in part and rev'd in part, 830 F.2d

SFR Ce TE seiiccniseiiseniiinsiideciiasiniaubsdsaneiidibibesnsindes 14

Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1,

Fe re as, PD ineicinsctinsttinsirinsaiideatiplibsnktininte 12

Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) ......... 12

TABLE OF AUTHORITIES -- Continued

Page

Martin v. Voinovich, 840F.Supp. 1175 (S.D.

INIT: inirsipinidstesissebineccinaitclnnnniicinyeihesnersenrenceereentes 10

Mathews v. De Castro, 429 U.S. 181 (1976)...........:000 16

Mathews v. Lucas, 427 U.S. 495 (1976)......:ccccseceseeseees 15

McGuire v. Switzer, 734 F. Supp. 99 (S.D.N.Y. 1990) .. 13, 17

Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979)......... 14

More v. Farrier, 984 F.2d 269 (8th Cir.) cert. denied,

BE BAe, Fe Ce iiccircicccstiiciscaccsssiesaceconsesenoescesnseeene 11

Nyquist v. Mauclet, 432 U.S. 1 (1977) ....s.sssessessssseesesees 9

Ohio Council of the Blind v. Voinovich, No. C2-93-

528, 1994 WL 504405 (S.D. Ohio Mar. 28, 1994)...... 10

Oregon v. Mitchell, 400 U.S. 112 (1970) ......-.seseseeesesees: 9

Plyler v. Doe, 457 U.S. 202 (1982) 0.0... seseseesessesereteeees 17

Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.),

cert. denied, 113 S. Ct. 655 (1992)........ceseeseeereseeeeees 12

San Antonio Indep. School Dist. v. Rodriguez, 411

EE FC ivceictasatdenchsnnensnsnnsxsnnnghnsaminentvctaneressasnsersors 8

Shapiro v. Thompson, 394 U.S. 618 (1969)... 18

Story v. Green, 978 F.2d 60 (2d Cir. 1992) .........::sssss000 12

Trautz v. Weisman, 819 F. Supp. 282

(S.D.N.Y. 1993)..........ccscscsccssscsoeecesersrsnseserenssersreseresees 11

United States Dep't of Agriculture v. Moreno, 413

U.S. 528 (1973))....ccrcecrnserecccosecceseccsccreresssasessssccnscsenseees 15

United States v. Carolene Products Co., 304 US.

144 (1938).........cecscsosccccssescesecsererscserersrsessecesessesecneneeees 8, 16

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164

(1972)....cscscccsesecsrecssscersssseseceseracscacecesecerssssesesecesecnenserers 10

Williamson v. Lee Optical of Oklahoma, Inc., 348

U.S. 483 (1955).....scscsssssscesessncssseeneessenecesercessessenenenenees 17

Zobel v. Williams, 457 U.S. 55 (1982) ....--cssssssseeseeeneees 15

TABLE OF AUTHORITIES -- Continued

Page

CONSTITUTION, STATUTES, AND REGULATIONS:

U.S. Const.: :

AMMO NY ..canuincinisaniminioniamaala |

Amman, MEV $ § .csicssssirnccdaea manna 8

Americans With Disabilities Act of 1990:

42 U.S.C. © TZIGIIE) ccciensoseneeens 14

42 U.S.C. § TQ RET) scsccitsccutornaedicamnaanann

42 U.S.C. § 12191 nine

Equal Pay Act of 1963, 29 U.S.C. § 206(d) ..........ecs00-.

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§ 200R0 €0. DIG. «..<:icnssnisisceinenciansaaeaaiaaeeaaaaianad Q

Rehabilitation Act, 29 U.S.C. § 706(15)A){iii)............. 13,17

Social Security Act:

42 U.S.C. § 40 i .isricticeeenvaeiae 3

42 U.S.C. § SQUID isccssucntieeiceenabaaanmeanaiiion 2

42 U.S.C. § 42RE invicta 2

42 U.S.C. GAG iicicninstcnieteneneen passim

20 CFR. § GQG TS FR ascnircncecnncvtenennencmmasin 2

20 C.F.R. § 404.1574(b)(2) (Vii) ......cccccesececeseseseseseeeeeceees 3

20 CFR. § G0 AIG oscccccciorerescnansnesdaaa 3

20 C.F LR. § GOR Me isisicccscstenesasesteasnsesneeiamcaie 3

MISCELLANEOUS:

Robert L. Burgdorf Jr., The Americans With

Disabilities Act: Analysis and Implications of a

Second-Generation Civil Rights Statute, 26 Harv.

C.R.-CA,. De Gaps SEF EI a i en snccattbsnniecittceeicieatlaaaiias 8,19

123 Cong. Rec. 4,815-16 (1977)........c..ccccccccceccccccccceccsceee 17

123 Comg. BiG. FF 5F0 CFP 1 10 sxeecsemsenenentstoneneanee 19

TABLE OF AUTHORITIES -- Continued

123 Cong. Rec. 37,140 (1977) ........sscsccssseseeensesesceeesseees

123 Cong. Rec. 37,140-41 (1977)........ccceeeeeseeesereeseeeeees

123 Cong. Rec. 39,032 (1977) .......ssscseseseeeeeseeesseseessees

56 Fed. Reg. 8578 (1991)............ccsscssessssrsseseesesesessesesees

H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990),

reprinted in 1990 U.S.C.C.A.N. 303 ........::e0sesesesesseees

H.R. Rep. No. 95-702(II), 95th Cong., Ist Sess.

(1977), reprinted in 1977 U.S.C.C.A.N. 4155 .........+--

Louis Harris & Associates, Inc., N.O.D./Harris

Survey of Americans With Disabilities (1994) ............

Amy Scott Lowndes, Note, The Americans With

Disabilities Act of 1990: A Congressional Mandate

for Heightened Judicial Protection of Disabled

Persons, 44 Fla. L. Rev. 417 (1992).......cc.cscccssseeeeeeeees

Jerry L. Mashaw, Against First Principles, 3\ San

Diego L. Rev. 211 (1994) ........csssssseseeeseeseeeseseseesesees

Laurence H. Tribe, American Constitutional Law

§ 16-31 (2d ed. 1988) ...........ecececceescsncecsnseeeeeceseseseeees

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

No.

PAUL E. SPRAGENS,

Petitioner,

Vv.

DONNA E. SHALALA, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Paul E. Spragens respectfully petitions this Court for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Tenth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-8a)

is reported at 36 F.3d 947. The opinion of the district

court (App., infra, 9a-22a) is reported at 808 F. Supp.

1537.

JURISDICTION

The judgment of the court of appeals was entered on

September 22, 1994. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part: "No person shall

* * * be deprived of life, liberty, or property, without

due process of law."

The provisions of 42 U.S.C. § 423(d)(4), and 20 C.F.R.

§§ 404.430(d), 404.1574(b)(2) are reproduced in the

Appendix, infra, 23a-25a.

STATEMENT

1. Petitioner Paui EE. Spragens_ suffers from

arthrogryposis, an irreversible congenital deformity of

his joints. This condition has left him with no use of his

arms and only limited use of his legs. Because petitioner

is unable to walk, he uses a motorized wheelchair for

mobility. Despite his severe disability, petitioner works

as a freelance indexer of books by typing with his toes

on a computer keyboard. App., infra, la, 9a.

2. Disabled persons such as petitioner are eligible for

disability benefits under the Social Security Act (the

Act). 42 U.S.C. § 423(a)(1)(A), (D). Persons capable of

"substantial gainful activity," however, are deemed not

disabled and are therefore ineligible for benefits. 42

U.S.C. § 423(d)(4). Petitioner began to receive Social

Security disability benefits in 1976 following the death

of his father. However, in 1988, pursuant to a periodic

disability review, the Social Security Administration

(SSA) determined that petitioner had been engaged in

substantial gainful activity and informed him that he was

no longer eligible for benefits. The SSA's action was

based upon a finding that petitioner's average net month-

ly earnings during 1986 were $349.26. Under SSA reg-

ulations, a person who earned more than $300 per month

during 1986 is deemed to have engaged in substantial

gainful activity. 20 C.F.R. § 404.1574(b)(2)(vi). App.,

infra, 2a, 10a.

The SSA's determination was accompanied by a

demand that petitioner return $19,930 in benefits paid to

}

him between 1986 and 1989. C.A. App. 115. The

determination was upheld upon reconsideration and,

following a hearing, was confirmed in a decision by an

Administrative Law Judge (ALJ). The Appeals Council

declined petitioner's request for review of the ALJ's

decision, making the ALJ's decision the final

administrative decision of the SSA. App., infra, 2a, 10a.

Throughout these administrative proceedings, petition-

er did not contest the fact that he earned $349 per month

during 1986. Nor does he now. Instead, petitioner

challenged the termination of his benefits on the ground

that his benefits would not have been terminated had his

disability been blindness rather than arthrogryposis. In

1986, a person disabled by blindness could earn up to

$650 per month and remain eligible for disability bene-

fits. 42 U.S.C. § 423(d)(4); 20 C.F.R. § 404.430(d)(ix).

Under 42 U.S.C. § 423(d)(4), "[nJo individual who is

blind shall be regarded as having demonstrated an ability

to engage in substantial gainful activity on the basis of

earnings that do not exceed the exempt amount under

section 403(f)(8) of this title which is applicable to

individuals described in subparagraph (D) thereof." The

referenced provision, Section 403(f)(8)(D), applies a

monthly earnings limitation to the receipt of retirement

benefits by the elderly. In 1986, that limit was $650 per

month. 20 C.F.R. § 404.430(d)(ix). The resulting pref-

erence for the blind over all other persons, no matter

how severe their disability, remains in place today.!

App., infra, 2a, 14a-15a.

The ALJ refused even to consider petitioner's

objection? to the preference, saying that it was ‘a

1 The earnings threshold for nonblind disabled persons for years

after 1989 is $500 per month. 20 C.F.R. § 404.1574(b)(2){(vii).

The earnings threshold for the blind in 1990 (the last year for

which the Code of Federal Regulations gives a figure) is $780 per

month. 20 C.F.R. § 404.430(d)(xiii).

2 Ina letter responding to the SSA's notification that his benefits

would cease, petitioner wrote "[t]he blind are eligible to receive

SSDI benefits as long as their net monthly earning don't exceed

constitutional argument which is inappropriate for this

administrative forum. * * * [I]f [petitioner] wishe[s] to

pursue his issues regarding discrimination he should

appeal to a United States District Court or should take up

the matter with his congressional delegation." C.A.

App. 46. The Appeals Council likewise stated that

"[t]he distinction between the blind and other disabled

individuals was promulgated by Congress, when it

enacted the disability provisions of the Social Security

Act. It can only be changed by revision of the law or

invalidation by the courts." C.A. App. 41.

3. Petitioner then filed suit in the United States District

Court for the District of Wyoming, arguing that 42

U.S.C. § 423(d)(4) and its implementing regulations

violate the equal protection component of the Due

Process Clause of the Fifth Amendment. In his motion

for summary judgment, which he filed pro se, petitioner

argued (C.A. App. 23-24B):

Arthrogryposis cannot rationally be distinguished

from blindness in this context. Like blindness,

arthrogryposis is also a permanent and irreversible

condition.

* * *

With respect to the distribution of disability

benefits, a blind person and a person with

$650 (for 1986) or $680 (for 1987). What is the basis for

discriminating between a permanent and irreversible disability

affecting the eyes and a permanent and irreversible disability

affecting limbs and joints (as in my case)?" C.A. App. 118-119.

In a second letter to the SSA, petitioner stated "your rules

defining ‘substantial gainful activity’ discriminate unfairly against

me, because they allow a blind person to earn more than twice as

much as me without losing benefits. * * * [It] is impossible to

justify * * * establishing distinctions among people with

permanent disabilities when deciding what constitutes 'substantial

gainful activity.’ Like a blind person, I am permanently disabled:

my condition, arthro sis, affects my limbs and joints. * * * It

is on this concept of fairness that I am fundamentally basing my

appeal." C.A. App. 111.

arthrogryposis are similarly situated and thus entitled

to equal protection. The relative capabilities of a

blind person and a quadriplegic with arthrogryposis

to engage in substantial gainful activity, and thus

escape the impoverishment that Social Security

disability benefits are designed to remedy, cannot be

distinguished without the aid of an arbitrary

classification. Either person must overcome

obstacles to secure and hold employment. In

overcoming the loss of sight, a blind person can use

braille and computers as tools, and a seeing eye dog

to assist with mobility. I can use a motorized

wheelchair to compensate partially for my inability

to walk. A computer assists me in my work and

renders the relative disadvantage I have in

manipulating, moving, and lifting objects with my

feet instead of my hands less a disadvantage.

X me x

The distinction between blind persons and

quadriplegics with arthrogryposis has no rational

relationship to the purpose of the Social Security

Act's disability insurance program. No characteristic

distinguishes them from me that are relevant to the

payment of disability benefits or the definition of

substantial gainful activity. Therefore, this provision

of the Social Security Act, as applied to me, denies

me equal protection.

The government, in response, defended the legislation

on the theory that Congress might nevertheless have

reasonably determined that blind persons have greater

difficulty finding employment. App., infra, 17a-18a.

The district court thereafter agreed with petitioner and

held that the SSA's laws and regulations, as applied to

petitioner, were unconstitutional. Jd. at 2la. While

acknowledging that in the context of social welfare

legislation, equal protection ordinarily requires only that

a challenged classification be rationally related to a

legitimate governmental interest, the district court

concluded that a case concerning unequal treatment of a

disabled person requires "a more exacting" review. Id.

at 17a. Applying that review, and after considering the

possible purposes of the preference for the blind, the

court held that the law as applied to petitioner was

"arbitrary and discriminatory" and did not have "a fair

and substantial relationship to the object of the

legislation." Jd. at 21a (internal quotation marks and

citations omitted). The Court therefore granted

judgment in favor of petitioner. Id. at 21a-22a.

4. The United States Court of Appeals for the Tenth

Circuit reversed. App., infra, la-8a. That Court first

rejected the district court's conclusion that the laws and

regulations at issue here were subject to some form of

heightened scrutiny and held instead that the rational

basis test was the proper standard of review. App., infra,

5a. Applying that test, the Tenth Circuit upheld the

preference for the blind, stating that "it is reasonable to

conclude that blind persons are in a less favorable

position than others who, though suffering from

disabilities, nonetheless still have their eyesight." App.,

infra, 6a-7a.

REASONS FOR GRANTING THE PETITION

Review of the Tenth Circuit's decision in this case is

warranted for several reasons. First, this Court should

grant certiorari to assess the effect of the Americans

With Disabilities Act on the appropriate standard of

review for cases involving legal classifications based on

disability. Second, the lower federal courts are in

conflict over the appropriate standard of review for such

cases. Those courts are also divided on the question

whether preferences for the blind in the award of

disability benefits violate equal protection principles.

The Court should grant review to resolve these conflicts.

Third, the questions presented by this case are of

considerable importance to millions of disabled persons.

Fourth, the lower court's judgment in this case is directly

at odds with the strong and growing national consensus

that persons able to work should not be discouraged

from doing so by the operation of governmental

programs. Finally, whatever standard of review is

appropriate for this case, the decision of the Tenth

Circuit is plainly wrong and is in conflict with this

Court's precedents.

1. On two occasions, this Court has given considera-

tion to the proper standard of review to apply to

classifications drawn on the basis of disability. In City

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432

(1985), the Court considered a city ordinance requiring a

proposed group home for the mentally retarded to obtain

a special use permit. Stating that "absent controlling

congressional direction," id. at 439, it could not conclude

that the mentally retarded me even a "quasi-suspect

classification," id. at 442, the Court applied what it said

was the rational basis test and held that the ordinance

was invalid as applied in that case. See id. at 447-450.

More recently, in Heller v. Doe, 113 S. Ct. 2637

(1993), this Court upheld, under a deferential version of

the rational basis test, Kentucky's statutes allowing for

the involuntary commitment of the mentally retarded.

The respondent in Heller (who represented a class of

involuntarily committed mentally retarded individuals)

argued that, notwithstanding Cleburne, Kentucky's

statutes should be subjected to heightened scrutiny

because of the passage of the ADA. See Brief for

Respondent 29 ("Congress, in enacting the ADA, has

indicated that all individuals with disabilities * * *

should be treated as a suspect class."); see also Heller v.

Doe, 113 S. Ct. at 2651 n.1 (Souter, J., dissenting). The

Court did not reject the argument, but instead noted that

it had not been properly preserved in the case. See 113

S. Ct. at 2642.

The ADA argument has been properly preserved in

this case, and it is a powerful one this Court should

consider.3 In the ADA, Congress made an express

finding that

individuals with disabilities are a discrete and insular

minority who have been faced with restrictions and

limitations, subjected to a history of purposeful

unequal treatment, and relegated to a position of

political powerlessness in our society, based on

characteristics that are beyond the control of such

individuals and_ resulting from _ stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to, society.

42 U.S.C. § 12101(a)(7). This finding, which tracks the

language of this Court's decisions identifying the

characteristics of a suspect classification,‘ is at the very

least a clear "Congressional endorsement of the idea that

classifications which disadvantage people with

disabilities should be subjected to heightened judicial

scrutiny under the equal protection clause." Robert L.

Burgdorf Jr., The Americans With Disabilities Act:

Analysis and Implications of a Second-Generation Civil

Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413, 436

(1991). In fact, the implications of the ADA go much

further than that. Because the ADA was expressly

enacted pursuant to Congress’ power under Section 5 of

the Fourteenth Amendment to enforce equal protection

principles, see 42 U.S.C. § 12101(b)(4), the ADA should

3 Petitioner argued in the courts below that heightened scrutiny

should apply, see Gov't C.A. Reply Br. 1 ("[Petitioner] argues that

the statute in this case is subject to a heightened standard of

review."); C.A. App. 24A. He also cited the ADA in support of

that argument. See Pet. C.A. Br. 13-15. Both lower courts,

moreover, considered the question whether heightened scrutiny

should apply. App., infra, 5a-6a, 15a-17a.

4 See United States v. Carolene Products Co., 304 U.S. 144,

152 n.4 (1938); Graham v. Richardson, 403 U.S. 365, 372 (1971);

San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28

(1973); Frontiero v. Richardson, 411 U.S. 677, 686 (1973)

(plurality opinion).

be seen as a directive to the judiciary to apply

heightened scrutiny to laws that differentially treat the

disabled. See Katzenbach v. Morgan, 384 U.S. 641

(1966); Amy Scott Lowndes, Note, The Americans With

Disabilities Act of 1990: A Congressional Mandate for

Heightened Judicial Protection of Disabled Persons, 44

Fla. L. Rev. 417 (1992). For in enacting the ADA,

"Congress clearly intended to create a new protected

class -- the disabled." Lowndes, supra, at 446. That

enactment, therefore, is the "controlling congressional

direction" that was missing in Cleburne.

This proposition is further confirmed by this Court's

analysis in Frontiero v. Richardson, 411 U.S. 677

(1973). In that case, the Court held that sex-based

classifications are subject to heightened scrutiny and, in

reaching this conclusion, the Court relied in part upon

Congress’ adoption of two major pieces of legislation

barring sex discrimination -- Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, and the Equal Pay Act

of 1963, 29 U.S.C. § 206(d) -- and Congress’ recent

ratification of the Equal Rights Amendment. 411 U.S. at

687 (plurality opinion of Brennan, J.). Pointing to these

measures, Justice Brennan stated that "Congress itself

has concluded that classifications based upon sex are

inherently invidious, and this conclusion of a coequal

branch of Government is not without significance to the

question presently under consideration." Jd. at 687-688,

citing Katzenbach v. Morgan, supra, and Oregon Vv.

Mitchell, 400 U.S. 112 (1970). Similarly, the ADA

should inform judicial review of laws that differentially

treat the disabled. This is a matter that should be

addressed by this Court.

This case presents a perfect vehicle for doing so,° for

here, relying on pre-ADA jurisprudence, the Tenth

5 Under this Court's cases, the argument for heightened scrutiny

in this case is in no way undermined by the fact that 42 U.S.C.

§ 423(d)(4) distinguishes not between the disabled and the

nondisabled, but between two subclasses of disabled persons. See

Nyquist v. Mauclet, 432 U.S. 1, 8 (1977) (applying strict scrutiny

Circuit expressly rejected the district court's application

of a "more exacting standard" and instead judged the

preference for the blind under the rational basis test.

App., infra, 5a-6a.°

2. Review of the decision below is also warranted to

resolve the conflicts and dispel the confusion that now

exists among the lower federal courts concerning the

standard of review applicable to disability

classifications. In the wake of the ADA, at least one

federal court has held, and several others have assumed,

that laws that classify persons according to disability

"are therefore subject at least to intermediate heightened

scrutiny based on Congress' findings in § 12101 [of the

ADA]." Martin v. Voinovich, 840 F. Supp. 1175, 1210

(S.D. Ohio 1993). See also Crowder v. Kitagawa, 842

F. Supp. 1257, 1264 (D. Haw. 1994) (assuming

arguendo in light of the ADA that heightened scrutiny

now applies to disability classifications); Ohio Council

of the Blind v. Voinovich, No. C2-93-528, 1994 WL

to a state law that discriminated "within the class of aliens" in the

award of student aid); Jimenez v. Weinberger, 417 U.S. 628, 636,

637 (1974) (invalidating on equal protection grounds a provision

of the Social Security Act that discriminated between "two

subclasses" of illegitimate children in the award of benefits);

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 169 (1972)

(invalidating a state law that similarly discriminated between

illegitimate children). Closer scrutiny of disability classifications

is warranted not just because they may result from invidious

animus, but also because they are often the product "of

thoughtlessness and indifference -- of benign neglect." Alexander

v. Choate, 469 U.S. 287, 295 (1985); see also Laurence H. Tribe,

American Constitutional Law § 16-31, at 1597 (2d ed. 1988) (the

history of "legislative blindness" toward the disabled "justifies the

exercise of heightened judicial scrutiny"). Therefore, laws that

divide disabled persons into separate categories on a seemingly

arbitrary basis are just as deserving of close judicial scrutiny as

laws that distinguish between the disabled and the nondisabled.

6 Although the Tenth Circuit did say in dicta that "regardless of

the standard used, the result in the instant case would, in our view,

be the same," App., infra, 6a, it is perfectly clear that the court

engaged only in rational-basis review.

504405, *8 (S.D. Ohio Mar. 28, 1994) ("Whether

handicapped persons are treated as a ‘suspect class’

entitled to at least intermediate, if not strict, scrutiny

under the equal protection clause also appears to be an

open question."); Trautz v. Weisman, 819 F. Supp. 282,

293-294 (S.D.N.Y. 1993) (holding, in light of the ADA,

that the disabled are a protected class for purposes of 42

U.S.C. § 1985(3)). Other courts, however, have taken

the opposite view of the effect of the ADA. See

Contractors Ass'n of Eastern Pennsylvania, Inc. v. City

of Philadelphia, 6 F.3d 990, 1001 (3d Cir. 1993) ("We

disagree * * * that the ADA overruled Cleburne"); More

v. Farrier, 984 F.2d 269, 271 n.4 (8th Cir.) (the ADA

does not "alter the standard for constitutional equal

protection claims"), cert. denied, 114 S. Ct. 74 (1993).

The lower federal courts are also divided over the

meaning of the Court's decision in Cleburne. Although

the Court in Cleburne said that it was applying the rat-

ional basis test, the Court's mode of analysis, as Justice

Marshall pointed out, was actually "the sort of probing

inquiry associated with heightened scrutiny." 473 US.

at 458 (Marshall, J., concurring in the judgment in part

and dissenting in part). In particular, the Court's opinion

went beyond ordinary rational basis review when it held

(id. at 450) that the "record" did not support the discrim-

inatory classification at issue. As Justice Marshall

observed, "under the traditional standard we do not sift

through the record to determine whether policy decisions

are squarely supported by a firm factual foundation.” Jd.

at 458. Justice Marshall predicted that by engaging in

"second order" rational-basis review while ostensibly

applying "ordinary" rational-basis review the Court

would leave lower courts "in the dark." Jd. at 460.

Justice Marshall's prediction has come to pass.

While some courts have held on the basis of Cleburne

that disability classifications should receive nothing

more than ordinary rational basis review, see, @.2.,

Disabled American Veterans v. United States Dep't of

Veterans Affairs, 962 F.2d 136, 142 (2d Cir. 1992);

Lussier v. Dugger, 904 F.2d 661, 671 (11th Cir. 1990),

at least one circuit has construed Cleburne to license

what it calls "active" rational basis review -- a test under

which the government must establish "on the record" a

rational basis for the challenged classification. See

Pruitt v. Cheney, 963 F.2d 1160, 1165-1166 (9th Cir.),

cert. denied, 113 S. Ct. 655 (1992); High Tech Gays v.

Defense Indus. Security Clearance Office, 895 F.2d 563

(9th Cir. 1990). Still other courts, owing to the confu-

sion, have avoided the question by assuming arguendo

that heightened scrutiny applies. See, e.g., Story v.

Green, 978 F.2d 60, 64 (2d Cir. 1992); Leckelt v. Board

of Comm'rs of Hosp. Dist. No. 1, 909 F.2d 820, 832 (Sth

Cir. 1990); Brennan v. Stewart, 834 F.2d 1248, 1258

(Sth Cir. 1988). In Brennan v. Stewart, for example, the

Fifth Circuit stated that it would assume that its review

of disability-based classifications "is somewhat closer

than usual" because the rational basis test used in

Cleburne "cannot be reconciled with the extreme

deference usually accorded under that rubric." 834 F.2d

at 1258.

The Court's recent decision in Heller v. Doe only

added to the confusion caused by Cleburne. In Heller,

the Court ignored Cleburne and employed ordinary rat-

ional basis test to judge a classification drawn on the

basis of mental retardation. The Court did not reject

Cleburne, however, but rather said that the Cleburne

Court did not "purport" to apply a different standard.

113 S. Ct. at 2643. Justice Souter therefore pointed out

that a Cleburne analysis would have entailed "enquiring

into record support for the State's proffered justifica-

tions, and examining the distinction in treatment in light

of the purposes put forward to support it." 113 S. Ct. at

2652 (Souter, J., dissenting). He then concluded that

"[w]hile the Court cites Cleburne once, and does not

purport to overrule it, neither does the Court apply it,

and at the end of the day Cleburne's status is left

uncertain. I would follow Cleburne here." Jd.

Finally, the courts are also divided on the ultimate

merits of the question presented here -- whether

preferences for the blind in the award of government

benefits for the disabled violate equal protection

principles. In McGuire v. Switzer, 734 F.Supp. 99

(S.D.N.Y. 1990), plaintiff was a paraplegic who

participated in a state-run, federally-funded program that

reimbursed the educational expenses of disabled

students. He challenged on equal protection grounds

new regulations that placed a cap on the amount of

expenses that could be reimbursed under the program,

arguing that, under a parallel program for which only

visually-disabled students were eligible, the cap was set

at a higher level. See id. at 113-114. Noting that in the

Rehabilitation Act, 29 U.S.C. § 706(15)(A)(iii),

"Congress has classified both blindness and paraplegia,

plaintiffs condition, as severe handicaps," the court

reasoned that "visually-disabled individuals are similarly

situated to those individuals as severely disabled as

plaintiff." Jd. at 113. Accordingly, the court held that

"the defendants have failed to establish that the state has

a rational basis for" its "disparate treatment of [the

plaintiff] vis-a-vis the state's treatment of eligible

visually-disabled individuals." Jd. at 113, 115.

McGuire is in square conflict with the decision below.

In each case, a government program awarded greater

benefits to needy blind persons than to other needy

disabled persons. But whereas the McGuire court

concluded that such disparate treatment violated equal

protection principles, the Tenth Circuit did not.

In sum, because of the passage of the ADA, because of

confusion over the appropriate application of Cleburne,

and because of the differing views over the

constitutionality of preferences for one disabled class

over another, this Court should grant review to clarify

the law in this important area.

3. The law in this area is important if for no other

reason than it affects millions of disabled persons. In

enacting the ADA, Congress found that 43 million

Americans have one or more physical or mental

disabilities. See 42 U.S.C. § 12101(a)(1). At stake in

this case, then, is the standard by which the

constitutionality of the many federal, state, and local

laws affecting these people should be judged. It is

crucial that this standard be clarified where, as here, the

result of the law's application is to cut off all benefits to

people in great need.

Furthermore, the particular laws and _ regulations

directly at issue in this case are themselves of direct

consequence to millions of disabled people. By the

government's own admission, approximately three

million people receive Social Security disability

benefits. See Gov't C.A. Reply Br. 3 & nl. It is

indisputable that these benefits are of great importance

to those who receive them. Cf. Goldberg v. Kelly, 397

U.S. 254 (1970). And in petitioner's own case, they

were indispensable, since he not only lost all of his

disability benefits, but also has been asked to return

more than $19,000 in pas: benefits paid as long as eight

years ago. The constitutionality of the laws and regula-

tions at issue here is therefore worthy of this Court's

close scrutiny. Cf. Medora v. Colautti, 602 F.2d 1149,

1154 (3d Cir. 1979); LaMadrid v. Hegstrom,

599 F. Supp. 1450, 1458 (D. Ore. 1984), affd in part

and rev'd in part, 830 F.2d 1524 (9th Cir. 1987).

4. The decision below also warrants further review

because the preference for the blind upheld by the Tenth

Circuit results in a scheme that is fundamentally at odds

with the national consensus that the government should

encourage work over idleness. In 1986, the earnings

limitation applicable to nonblind disabled persons was

$300 per month, or $3,600 per annum. The earnings

limitation applicable to blind persons that same year was

$650 per month, or $7,800 per annum. In 1986,

petitioner was paid $6,072 in Social Security benefits.

C.A. App. 120. The SSA determined, however, that

petitioner was not eligible for and should not have

received those 1986 benefits because he earned $4,191

through gainful employment that year. Therefore, by

_ earning more than the $3,600 limit, petitioner rendered

himself ineligible for $6,072 in benefits -- making it

economically senseless for petitioner to obtain work he

was capable of performing. In contrast, the blind in

1986 could earn more than twice as much -- $7,800 -- as

nonblind disabled persons without losing benefits.

Therefore, a blind person capable of earning the amount

of money that petitioner earned in 1986 ($4,191) would

not have had a disincentive to work to his fullest. In

short, the scheme upheld by the Tenth Circuit actually

gives all disabled persons -- other than the blind -- a

financial incentive not to work. As petitioner himself

put it in a letter addressed to the SSA, the rule

"discriminates unfairly, rewards indolence, and

undermines the family." C.A. App. 119.

5. Finally, no matter which standard of review should

have been applied in this case, the Tenth Circuit was

wrong to uphold the laws and regulations at issue here

because they cannot survive under any standard

approved by this Court. The rational basis test requires a

legislatively-drawn classification "be rationally related

to a legitimate government purpose." Cleburne, 473

U.S. at 446. Although deferential, this "standard of

rationality * * * must find some footing in the realities

of the subject addressed by the legislation." Heller v.

Doe, 113 S. Ct. at 2643. When that footing is absent,

this Court does not hesitate to invalidate legislation.

See, e.g., Zobel v. Williams, 457 U.S. 55 (1982); United

States Dep't of Agriculture v. Moreno, 413 U.S. 528

(1973). The rational basis test, then, "is not a toothless

one." Mathews v. Lucas, 427 U.S. 495, 510 (1976).

The Tenth Circuit's entire explanation for its decision

to uphold the preference for the blind was the following

conclusory statement:

In our view, it is reasonable to conclude that blind

persons are in a less favorable position than others

who, though suffering from disabilities, nonetheless

still have their eyesight. And the fact, if it is a fact,

that [petitioner] may have "more disability" than

some blind persons does not change the result. See

Mathews v. De Castro, [429 U.S. 181 (1976)]. A

classification scheme of this sort does not have to be

perfect.

App., infra, 6a-7a (emphasis in the original). The

shortcomings of this "analysis" are manifest. First, the

court did not explain what it is that the blind are in "a

less favorable position" with respect to, or why it is

reasonable to conclude that they are in that less

favorable position. Second, even if the blind do occupy

a "less favorable position," the court did not explain how

the laws and regulations at issue here are rationally

related to the amelioration of that condition. Third, and

perhaps most fundamentally, the Tenth Circuit plainly

erred by disposing of petitioner's challenge as if it were a

facial rather than an as applied challenge.’ The district

court's holding was that "42 U.S.C. § 423(d)(4), as

applied to [petitioner], violates the equal protection

component of the Fifth Amendment." App., infra, 21a

(emphasis added). The Tenth Circuit, however, upheld

the statute as if it had been attacked on its face; this is

clear from the court's statement quoted above and the

case it cited -- Mathews v. De Castro -- which involved

a facial challenge. See 429 U.S. at 184.

It is quite clear, however, that, as applied to petitioner,

the laws and regulations at issue here are irrational. Like

blindness, petitioner's condition -- arthrogryposis -- is a

permanent, irreversible, and severe disability. Indeed,

7 A law which is valid on its face may nonetheless be irrational

as applied in a particular case. See, e.g., Cleburne, 473 U.S. at

447-450; Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1358

(6th Cir. 1992); see also Carolene Products, 304 U.S. at 153-154;

cf. Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191,

200 (Sth Cir. 1984) (invalidating ordinance on its face and as

applied), affd in part and vacated in part, 473 U.S. 432 (1985).

8 In his motion for summary judgment, petitioner argued that

"this provision of the Social Security Act, as applied to me, denies

me equal protection." C.A. App. 24B.

arctletcanan B/S i eA ts

the Rehabilitation Act classifies both blindness and

quadriplegia (a term descriptive of petitioner's condition)

as "severe disabilit[ies].". 29 U.S.C. § 706(15)(A)(iii).

Furthermore, both blindness and petitioner's disability

obviously make it very difficult to find employment. In

all relevant respects, then, petitioner and the blind are

similarly situated. See McGuire v. Switzer, supra.

Because the core command of the Equal Protection

Clause is that government must treat similarly situated

persons alike, see, e.g., Cleburne, 473 U.S. at 439;

Plyler v. Doe, 457 U.S. 202, 216 (1982), the laws and

regulations at issue here are therefore unconstitutional as

applied to petitioner.

Nor is the discrimination against petitioner capable of

weathering even a facial challenge to its constitutional-

ity. The purpose of the statute at issue is readily appar-

ent from its legislative history: It was Congress’ intent

"to remove disincentives to gainful activity, and to

encourage every person to seek work, to contribute, and

to become independent." 123 Cong. Rec. 37,140 (1977)

(statement of Sen. Bayh).° It surely is rational to give

the disabled a financial incentive to choose industry over

idleness. Yet it is just as surely irrational to give this

incentive only to some seriously disabled persons.!°

9 See also 123 Cong. Rec. 37,140-41 (1977) (statements of Sen.

Humphrey & Durkin); 123 Cong. Rec. 4,815-16 (1977)

(statements of Sen. Humphrey & Sen. Bayh). The government

throughout this case has defended the rationality of the preference

for the blind with reference to the purposes expressed in this

legislative history. See Gov't C.A. Br. 11, 21-23. The

government, moreover, has introduced into the record no evidence

other than the legislative history.

10The principle that when government tackles social problems it

"may take one step at a time," Williamson v. Lee Optical of

Oklahoma, Inc., 348 U.S. 483, 489 (1955), is wholly inapplicable

in this case. In raising the earnings limit for the blind, Congress

deliberately decided not to do the same for other disabled persons.

"The conferees are aware that this [legislation] establishes a

different test of SGA (substantial gainful activity] for blind

persons than is applied administratively for persons with other

- aameuaataaaucaeauaaumummaaaiuscasacasiasacnaaaaeamaaam acta ate

Those persons with a serious disability other than blind-

ness face the same dilemma between earning a living

and losing benefits that the blind do. The purpose of the

legislation, therefore, cannot possibly be furthered by

cutting off benefits to persons in petitioner's position.!!

In the courts below, the government argued (see Gov't

C.A. Br. 21-23) that the preference for the blind was

rational because Congress could plausibly conclude that

the blind face greater employment problems than other

disabled persons. See, e.g., 123 Cong. Rec. 39,032

(1977) (statement of Rep. Bingham) ( "We feel blind

persons experience greater ongoing financial problems

in seeking permanent employment than other disabled

individuals, which require special consideration.").

There are two complete answers to this argument. First,

the idea that the blind face greater difficulties finding

employment than other disabled persons simply finds no

"footing in the realities of the subject." Heller v. Doe,

disabilities. The conferees do not intend that the new SGA level

established for the blind should be applied to other types of

disability." H.R. Rep. No. 95-702(I1), 95th Cong., Ist Sess. 73

(1977), reprinted in 1977 U.S.C.C.A.N. 4155, 4319. The "one

step at a time” principle cannot apply where it is not plausible to

suppose that Congress plans to take any further steps. Here, the

preference for the blind was put in place in 1977 and Congress has

shown no inclination since then to put other disabled persons on a

par with the blind.

11In Shapiro v. Thompson, 394 U.S. 618 (1969), this Court

identified a quite similar flaw in an argument advanced in defense

of a Pennsylvania law requiring new state residents to wait for one

year before receiving welfare benefits:

Pennsylvania suggests that the one-year waiting period is

justified as a means of encouraging new residents to join the

labor force promptly. But this logic would also require a

similar waiting period for long-term residents of the State. A

state purpose to encourage employment provides no rational

basis for imposing a one-year waiting-period restriction on

new residents only.

Id. at 637-638 (emphasis added). See also Jimenez v. Weinberger,

417 USS. at 636-637.

113 S. Ct. at 2643. It is true that, by way of statistical

support for the legislation, Senator Bayh pointed out that

there is "a dramatic 70 percent rate of unemployment

and underemployment" among the blind; but he then

went on to say that "[aJny group with such a high rate

merits being singled out for compensatory help, for

particular assistance to meet their problems." 123 Cong.

Rec. 37,139 (1977). The fact is that the rate of

unemployment for all disabled persons closely

approximates the rate for the blind cited by Senator

Bayh. See H.R. Rep. No. 485(II), 101st Cong., 2d Sess.

32 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 314

("Two-thirds of all disabled Americans between the ages

of 16 and 64 are not working at all."); 56 Fed. Reg.

8578, 8581 (1991) (same); Burgdorf, supra, at 420

(same); Louis Harris & Assocs., Inc., N.O.D./Harris

Survey of Americans With Disabilities 7 (1994) (same);

see also Jerry L. Mashaw, Against First Principles, 31

San Diego L. Rev. 211, 236 (1994) ("[T]he unemploy-

ment [rate] for the handicapped in the United States is

estimated at 75% to 80% and drops down to about 50%

only in times of very full employment."). Congress thus

could not have reasonably concluded that the blind are

more economically challenged than other severely

disabled persons.

Finally, and in any event, even if it were true that the

blind do have greater difficulty finding jobs than other

disabled persons, the preference enacted by Congress

would still be irrational. This is because the preference

does nothing to aid those blind persons who are unable

to find work. Under the scheme created by 42 U.S.C.

§ 423(d)(4), those blind persons who earn less than $300

per month are treated no differently than other disabled

persons who earn less than $300 per month. Similarly,

those blind persons who earn more than $650 per month

are treated no differently than other disabled persons

who earn more than $650 per month. Therefore, the

benefit of the policy, such as it is, is felt entirely and

only by those blind persons who earn between $300 and

$650 per month. It is necessarily the case, however, that

every blind person who fits that description is already

employed. Therefore, even if the blind do face unique

obstacles to employment, 42 U.S.C. § 423(d)(4) does

nothing to remove them. Instead, its only effect is to

punish severely disabled persons such as petitioner who

sought to earn a living notwithstanding their disability.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

WALTER A. SMITH, JR.*

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5600

* Counsel of Record Counsel for Petitioner

DECEMBER 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT.

No. 93-8067

Paul E. SPRAGENS, Plaintiff-Appellee,

Donna E. SHALALA, Secretary of

Health and Human Services, Defendant-Appellant

Sept. 22, 1994

Before MOORE, Circuit Judge, McWILLIAMS,

Senior Circuit Judge, and ROSZKOWSKI, Senior

District Judge.*

McWILLIAMS, Senior Circuit Judge:

This is a Social Security case involving a constitutional

challenge to a federal statute and administrative

regulations promulgated pursuant thereto.

Paul E. Spragens suffers from arthrogryposis! and

because of that condition he has received for many years

disability and disability insurance benefits under the

Social Security Act. 42 U.S.C. §§ 401-33 (1988 &

Supp. 1992). Following periodic disability review, the

Social Security Administration in September, 1988,

found that from January, 1986, through December, 1986,

Spragens' average net earnings from independent self-

* Honorable Stanley J. Roszkowski, Senior District Judge,

Northern District of Illinois, sitting by designation.

1 Arthrogryposis is an_ irreversible and non-progressive

congenital deformity of the joints. The disease has left Spragens

with no use of his arms and limited use of his legs. He uses a

motorized wheelchair for mobility. Despite the severity of his

disability, Spragens is able to type on a computer keyboard with

his toes, and works as a self-employed indexer of books.

employment were $349.26 per month. At that point in

time the applicable regulation provided that a person

who had net earnings of at least $300 per month was

engaged in "substantial gainful activity" and because of

that was no longer eligible for Social Security benefits,

regardless of his or her physical condition. 42 U.S.C.

§ 423(d)(4) (1988); 20 CFR 404.1574(b)(2)(vi).

Accordingly, Spragens' Social Security benefits ceased.

Spragens sought, and obtained, review by an

Administrative Law Judge (ALJ). At the hearing

Spragens did not challenge the administrative ruling that

because he received $300 or more per month from his

independent self-employment he was no longer eligible

for Social Security benefits under the then existing rules

and regulations. He attempted to challenge before the

ALJ, however, the $300 figure on the basis that he was

denied his equal protection rights, because by separate

regulation blind persons were allowed to receive $650

net earnings per month before he, or she, became

ineligible for Social Security benefits. 42 U.S.C.

§ 423(d)\(4); 42 U.S.C. § 403(f(8)(D); 20 CFR

404.430(d)(ix); 20 CFR 404.1584(d).

The ALJ upheld the administrative ruling that because

Spragens received more than $300 net earnings per

month he was no longer eligible for any Social Security

benefits. The ALJ declined to address Spragens'

constitutional challenge to the $300 limitation. On

review, the Appeals Council affirmed the ALJ.

Spragens then brought the present actin in the United

States District Court for the District of Wyoming.

Spragens' basic position was that because of the $300

per month limitation placed on his allowable net

earnings from independent self-employment, as

contrasted with the $650 per month limitation afforded

blind persons, he was denied equal protection. Spragens

did not contest the action of the Secretary in holding that

under the law as it then existed, he was no longer

eligible for Social Security benefits since his net

earnings were more than $300 per month.

The Secretary moved to affirm the Appeals Council.

Spragens moved from summary judgment on that part of

his complaint which challenged the constitutionality of

the $300 per month limitation. After hearing, the district

court granted the Secretary's motion to affirm the

administrative decision that because he had net earnings

of more than $300 per month, Spragens was no longer

entitled to Social Security benefits, "regardless of the

severity of his impairments."

At the same time, the district court went on to consider

Spragens' equal protection argument. The district court

ruled in favor of Spragens on his equal protection

argument and concluded that granting blind persons the

right to receive $650 net earnings per month before

losing Social Security benefits, as opposed to granting

one situated as is Spragens only $300 net earnings per

month before losing his Social Security benefits, was

"arbitrary and discriminatory" and that the $650 per

month figure granted blind persons did not have "a fair

and substantial relationship to the object of the

legislation."

Accordingly, the district court held that 42 U.S.C.

§ 423(d)(4), and the regulations issued pursuant thereto,

as applied to Spragens, violated the equal protection

component of the Fifth Amendment.? For relief, the

district court ordered the Secretary "to reinstate

Spragens' eligibility to receive disability benefits," and

the court further decreed that Spragens did not owe the

Social Security Administration any amount for alleged

overpayment. See Spragens v. Secretary of Health &

2 It is well established that the Due Process Clause of the Fifth

Amendment "encompasses equal protection principles" Mathews

v. De Castro, 429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 432 n. 1, 50

L.Ed.2d 389 (1976).

human Servs., 808 F.Supp. 1537 (D.Wyo.1992). The

Secretary now appeals.

Spragens' position in this Court, as it was in the district

court, is that because a blind person, under applicable

statute and regulations, is permitted to receive $650 net

earnings per month before he, or she, become ineligible

for Social Security benefits, whereas he may only

receive $300 net earnings per month before he becomes

ineligible for Social Security benefits, he has been

denied equal protection of the laws. The obvious

"reverse side" of this argument is that if blind persons

were not allowed by statute and regulations to receive

$650 net earnings per month before becoming ineligible

for Social Security benefits, and were only allowed $300

net earnings per month, Spragens would have no equal

protection argument.

Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50

L.Ed.2d 389 (1976) involved a constitutional challenge

based on Fifth Amendment due process rights to Social

Security regulations which, according to the plaintiff in

that action, violated her equal protection rights in that

they favored a married woman under 62 years of age

who had minor children and whose husband retired or

became disabled as contrasted with a divorced woman

whose ex-husband retired but who was otherwise

similarly situated as was the married woman. More will

be said about the details of that case later. At this point,

we would simply quote from that opinion concerning the

general principles to be followed in considering

Spragens' argument in this Court:

The basic principle that must govern an assessment

of any constitutional challenge to a law providing for

governmental payments of monetary benefits is well

established. Governmental decisions to spend money

to improve the general public welfare in one way and

not another are "not confided to the courts. The

discretion belongs to Congress, unless the choice is

clearly wrong, a display of arbitrary power, not an

exercise of judgment," Helvering v. Davis, 301 U.S.

619, 640 [57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937)}.

In enacting legislation of this kind a government does

not deny equal protection "merely because the

classifications made by its laws are imperfect. If the

classification has some ‘reasonable basis,’ it does not

offend the Constitution simply because the

classification 'is not made with mathematical nicety

or because in practice it results in some inequality.’ "

Dandridge v. Williams, 397 U.S. 471, 485 [90 S.Ct.

1153, 1161, 25 L.Ed.2d 491 (1970)].

To be sure, the standard by which legislation such as

this must be judged "is not a toothless one," Mathews

v. Lucas, 427 U.S. 495, 510 [96 S.Ct. 2755, 2764, 49

L.Ed.2d 651 (1976)]. But the challenged statute is

entitled to a strong presumption of constitutionality.

"So long as its judgments are rational, and not

invidious, the legislature's efforts to tackle the

problems of the poor and the needy are not subject to

a constitutional straitjacket." Jefferson v. Hackney,

406 U.S. 535, 546 [92 S.Ct. 1724, 1731, 32 L.Ed.2d

285 (1972)]. It is with this principle in mind that we

consider the specific constitutional issue presented by

this litigation.

Mathews v. De Castro, 429 U.S. at 185, 97 S.Ct. at 434.

In the instant case, the district court concluded that the

traditional "rational basis" test between the ‘challenged

classification" and the "legitimate government interest"

was not the proper standard and that a more exacting

standard should be used since Spragens was severely

disabled and was going to lose all Social Security

benefits. We disagree and hold that the "rational basis"

test is the proper standard for review. See Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct.

3249, 87 L.Ed.2d 313 (1985). In Cleburne the Supreme

Court held that mentall, retarded persons were not even

a "quasi-suspect class," and that accordingly, a stricter

scrutiny than "rational basis" was not required. Jd. at

446, 105 S.Ct. at 3257-58. In our view, a classification

applying to blind persons is not suspect, or even quasi-

suspect, and we therefore apply the "rational basis"

standard, rather than some more strict one, to the instant

case. All of which may be academic in a sense, since,

regardless of the standard used, the result in the instant

case would, in our view, be the same.

Is there a rational relationship between granting a blind

person, but not granting a non-blind person who is

otherwise disabled, a preference by allowing him, or her,

to receive $650 net earnings per month before becoming

ineligible for Social Security benefits, whereas the non-

blind disabled person is only granted $300 net earnings

per month before becoming ineligible for Social Security

benefits? We think there is a reasonable basis therefor.?

In our view, it is reasonable to conclude that blind

persons are in a less favorable position than others who,

though suffering from disabilities, nonetheless still have

their eyesight. And the fact, if it is a fact, that Spragens

may have "more disability" than some blind persons

does not change the result. See Mathews v. De Castro,

supra. A classification scheme of this sort does not have

to be perfect.

3 While the rational basis standard still required "some footing

in the realities of the subject addressed by the legislation." Heller

v. Doe, --- U.S. ---, ---, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257

(1993), the statute should be upheld if there is "any reasonably

conceivable state of facts that could provide a rational basis for the

classification." FCC v. Beach Communications, Inc., --- U.S. ---,

---, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). The

legislature is not under an obligation to produce evidence that its

classification is reasonable, and indeed the classification may be

based on "rational speculation unsupported by evidence or

empirical data." Jd. at ---, 113 S.Ct. at 2102. Legislation which

confers monetary benefits is accorded a strong presumption of

validity, because "Congress should have discretion in deciding

how to expend necessarily limited resources." Schweiker v.

In support of our resolution of this matter, see, e.g.,

Mathews v. De Castro, supra, and Okla. Educ. Ass'n v.

Alcoholic Beverage Laws Enforcement Comm'n, 889

F.2d 929 (10th Cir. 1989).

In Mathews there was a Fifth Amendment due process

challenge to Social Security regulations which granted

benefits to a married woman under 62 whose husband

retired or became disabled, if she had a minor or other

dependent child, but did not grant similar benefits to a

divorced woman who was also under 62 and had a

young or disabled child in her care when her ex-husband

retired or became disabled. In rejecting a divorced

woman's constitutional challenge to these regulations the

Supreme Court applied the "rational basis" test and

concluded that it was not "irrational" for Congress to

recognize that "divorce couples typically live separate

lies" and that such could be considered in deciding not to

grant divorced women under 62 benefits when their ex-

husband retires or becomes disabled, and further, that

Congress could "rationally decide that the problems

created for divorced women remained less pressing than

those faced by women who continue to live with their

husbands." Mathews v. De Castro, 429 U.S. 181, 189,

97 S.Ct. 431, 436, 50 L.Ed.2d 389 (1976).

Although Oklahoma Education Association, supra,

does not involve an equal protection challenge to a

Social Security regulation, we nonetheless believe it

supports our resolution of the present controversy. In

that case there was a constitutional challenge based on

due process and equal protection grounds by state

employees to a state constitutional provision, and an

implementing state statute, which prohibited state

employees from obtaining a state liquor license or

working in an alcoholic beverage business that required

such license. After determining that "state employees"

Wilson, 45 U.S. 221, 238, 101 S.Ct. 1074, 1085, 67 L.Ed.2d 186

(1981).

were not a suspect or quasi-suspect class and that

accordingly, the rational relationship test should be used

instead of a more exacting one, we concluded that there

was a rational basis for prohibiting state employees from

simultaneously working in the alcoholic beverage

industry. The state's declared purposes for the

legislation were threefold:

(1) to prevent direct conflicts of interest with those

state employees who have some authority over the

administration and enforcement of the state's liquor

laws; (2) to prevent the public perception that the

state is involved with liquor trafficking; and (3) to

prevent the state's encouragement of liquor

consumption.

Okla. Educ. Ass'n v. Alcoholic Beverage Laws

Enforcement Comm'n, 889 F.2d at 933-34. We held that

the Oklahoma statutory provisions were rationally

related to further those goals.*

The judgment of the district court granting Spragens

summary judgment on his equal protection claim is

reversed. Otherwise, the district court's judgment is

affirmed.

4 See also Tuttle v. Secretary of Health, Education & Welfare,

504 F.2d 61 (10th Cir.1974), where we held that a classification

under the Social Security ‘Act does not offend the constitution

"because in practice it results in some inequality.” Jd. at 63

(quoting Lindsley v. Natural Carobonic Gas Co., 220 U.S. 61, 78,

31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)), and where we said that

the test is whether the statute (or implementing regulation)

manifests a patently arbitrary classification, and is utterly lacking

in rational justification. Tuttle, 504 F.2d at 62.

APPENDIX B

UNITED STATES DISTRICT COURT,

D. WYOMING

No. 91-CV-0173-B

Paul E. SPRAGENS, (Ref.: S3GCB, 463-92-2526),

Plaintiff,

SECRETARY OF HEALTH AND HUMAN

SERVICES, Defendant

Dec. 18, 1992

ORDER

BRIMMER, District Judge:

This matter comes before the Court on August 19,

1992. The Court, having considered the materials on file

both in support of and in opposition to the motions,

having considered the arguments of counsel, and being

fully advised in the premises, FINDS and ORDERS as

follows:

Background

The facts of this case are not in dispute. Plaintiff Paul

Spragens ("Spragens") is a quadriplegic, has no use of

his arms, limited use of his legs, and is unable to walk.

He suffers from a condition known as arthrogryposis, a

congenital deformity.! Spragens filed this action pro se,

seeking judicial review of the defendant's ("the

1 Arthrogryposis is a contracture of the joints. DoRLAND’s

ILLUSTRATED MEDICAL DICTIONARY 148 (25th Ed. 1974).

Approximately one in three thousand people are inflicted by

arthrogryposis at birth. The severity can vary greatly. Telephone

Interview with Mary Anne Schmidt, Director of Avenue, National

Support Group For Arthrogryposis Multiplex Congentia, Sonora,

California (December 16, 1992).

cee a a i pale eat il ie ta al

EP LE OS Pte Te UT ee gb OS Pte a

10a

Secretary") final decision that his period of disability

ceased as of January 1986, because he was engaged in

substantial gainful activity ("SGA") within the meaning

of Title II of the Social Security Act ("the Act"),

codified at 42 U.S.C. §§ 401-33 (1991).

In February 1976, Spragens was awarded disability

and disability insurance benefits based on a finding of

disability beginning in June 1974 due to arthrogryposis

(Adm.Rec. 52). In September 1988, following a

continuing disability review, the Social Security

Administration ("SSA") made a finding that from

January 1986 through December 1986, Spragens'

average monthly net income for his work as a free-lance

book indexer was $349.26. Because Spragens’ net

income exceeded $300 per month, the SSA determined

that Spragens was engaged in substantial gainful activity

and no longer qualified for disability benefits (Adm.Rec.

61-68).2 This determination was upheld upon

reconsideration (Adm.Rec. 76-77), and, following a

hearing (Adm.Rec. 15-47), in a decision by an

Administrative Law Judge (ALJ) (Tr. 7-10).2 The

Appeals Council adopted the Administrative Law

Judge's decision, making it the Secretary's final

administrative decision (Adm.Rec. 3-4).

The Secretary has moved the Court to affirm his

administrative decision. Spragens has raised an equal

protection issue and has moved for summary judgment.

2 Spragens' disability was determined to have ceased in January

1986, the first month of substantial gainful work after the

completion of a trial work period (Adm.Rec. 76).

3 The ALJ also found that Spragens had been overpaid for

disability insurance benefits by $19,930 from April 1986 through

May 1989 (Adm.Rec. 9, 69-71).

lla

STANDARD FOR REVIEW

Substantial Evidence

Any individual, after any final decision of the

Secretary made after a hearing to which he was a

party, irrespective of the amount in controversy, may

obtain review of such decision by a civil action . . . in

the district court of the United States for the judicial

district in which the plaintiff resides .. . .

The court shall have power to enter, upon the

pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a

rehearing.

The findings of the Secretary as to any fact, if

support by substantial evidence, shall be conclusive

(emphasis added)... .

42 U.S.C. § 405(g) (1991).

Substantial evidence is defined as ‘sufficient

relevant evidence in the record that a reasonable

person might deem adequate to support the ultimate

conclusion.

Potter v. Secretary of Health & Human Services, 905

F.2d 1346, 1348 (10th Cir. 1990) quoting Bernal v.

Bowen, 851 F.2d 297, 299 (10th Cir. 1988).

Summary Judgment

Summary judgment should be granted if "there is no

genuine issue as to any material fact and . . . the moving

p is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c).

In considering a party's motion for summary

judgment, the court must examine all evidence in the

light most favorable to the nonmoving party. Barber

v. General Elec. Co. 648 F.2d 1272, 1286 n. 1 (10th

Cir. 1981)... Under [Rule 56], the initial burden is

12a

on the moving party to show the court "that there is

an absence of evidence to support the nonmoving

party's case." Celotex Corp. v. Catrett, 477 U.S. 317,

325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

The moving party's burden may be met when that

party identifies those portions of the record which

demonstrate the absence of a genuine issue of

material fact. Jd. at 323, 106 S.Ct. at 2553.

Once the moving party has met these requirements,

the burden shifts to the party resisting the motion.

The nonmoving party must "make a showing

sufficient to establish the existence of an element

essential to that party's case, and on which that party

will bear the burden of proof at trial." Id. at 322, 106

S.Ct. at 2552; see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). The party resisting the motion

"may not rest upon the mere allegations or denials of

his pleadings" to avoid summary judgment.

Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The

mere existence of a scintilla of evidence will not

avoid summary judgment; there must be sufficient

evidence on which a jury could reasonably find for

the nonmoving party. Id. at 251, 106 S.Ct. at 2511.

Manders v. Okl. ex rel. Dept. of Mental Health, 875 F.2d

263, 265 (10th Cir.1989).

DISCUSSION

Review of Administrative Decision

The Social Security Administration has a procedure for

determining whether a claimant's disability continues or

ends under the Act. 20 C.F.R. § 404.1594 (1991). The

first step involves a determination of whether there has

been medical improvement and if that improvement is

related to a claimant's ability to work. Jd. at

§ 404.1594(a). If there has been no medical improve-

l3a

ment,‘ benefits will continue unless an exception ap-

plies. Jd. One of the exceptions requires a determin- —

ation of whether the claimant has engaged in substantial

gainful activity. 20 C.F.R. § 404.1594(d)(5)(1991). If

the claimant has engaged in SGA and any applicable

trial work period has been completed, the disability will

be deemed to have ended. Jd. at § 404.1594(f)(1).

Mr. Spragens' impairment did not improve, so the first

step in the evaluation process was a determination of

whether Spragens was engaged in SGA. The record

shows that Spragens' net income in 1986 from self

employment was $6,043 (Adm.Rec. 86, 110). After

deducting $1,853 of allowable impairment related work

expenses (Adm.Rec. 115), his income was $4,191, or an

average of about $349 per month. This exceeded the

$300 amount allowable under the regulations and

created a presumption that Spragens was engaged in

SGA and was no longer eligible to receive benefits. 20

C.F.R. § 404.1574(b)(2)(vi) (1991). Thus, the SSA

determined, after a nine month trial work period, which

ended in November 1978, and a fifteen month extended

period of eligibility, which ended in February of 1982,

that Spragens was engaged in SGA (Adm.Rec. 8-9).

Spragens does not disagree with the SSA records

regarding his earnings or employment related work

expenses, which were the basis for the administrative

finding (Adm.Rec. 8-9). Because of Spragens' SGA, the

Administrative Law Judge determined that Spragens'

disability correctly ceased in January 1986, and that

Spragens was overpaid disability insurance benefits by

$19,930. Id.

This Court finds that there is substantial evidence in

the record to support the administrative finding that

Spragens was engaged in substantial gainful activity.

Because Spragens was engaged in SGA, he "could not

4 There is no evidence of medical improvement in this case.

14a

be found disabled, regardless of the severity of his

impairments." Fowler v. Bowen, 876 F.2d 1451, 1453

(10th Cir. 1989); see also 20 C.F.R. § 404.1520(b)

(1991). For these reasons, the government's motion to

affirm the administrative decision is granted.

Equal Protection Challenge

Spragens argues that 42 U.S.C. § 423(d)(4) (1991)

violates the equal protection component of the Due

Process Clause of the Fifth Amendment.5 Section

423(d)(4) states that: "No individual who is blind shall

be regarded as having demonstrated an ability to engage

in substantial gainful activity on the basis of earnings

that do not exceed the exempt amount under section

403(f)(8) of this title which is applicable to individuals

described in subparagraph (D) thereof." Under this

section, a more lenient monthly earnings test is applied

to a person disabled by reason of blindness, as opposed

to some other cause, in determining whether that-person

is engaged in SGA. 42 U.S.C. § 423(d)(4); see also 20

C.F.R. 404.430, 404.1584(d) (1991).

In 1986, a person disabled by blindness could earn up

to $650 per month without being engaged in SGA. 20

C.F.R. 404.430(d)(ix) (1991). By contrast, a person

disabled by something other than blindness could only

earn up to $300 per month without being engaged in

SGA. 20 C.F.R. § 404.1574(b)(2)(vi) (1991). Spragens

had net earnings of $349.26 per month in 1986. He was

determined to be engaged in SGA, and lost all disability

benefits. Had Spragens been disabled by reason of

blindness, rather than by arthrogryposis, he would not

have been engaged in SGA under the guidelines, and

would not have lost his disability benefits.

5 "It is well settled that the Fifth Amendment's Due Process

Clause encompasses equal protection principles." Mathews v. De

Castro, 429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 432 n. 1, 50 L-Ed.2d

389 (1976).

lSa

This regulatory scheme creates a classification. People

severely disabled by arthrogryposis, having net earnings

between $300 and $650 per month, in 1986, were denied

disability benefits. Whereas, people disabled by

blindness, who earned between $300 and $650 per

month, in 1986, received disability benefits.

In the area of social welfare, traditional equal

protection analysis requires the challenged classification

to be rationally related to some legitimate governmental

interest. United States Department of Agriculture v.

Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782

(1973); City of Cleburne, Texas v. Cleburne Living

Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87

L.Ed.2d 313 (1985); Schweiker v. Wilson, 450 U.S. 221,

230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981);

Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S.Ct. 2376,

2386-87, 69 L.Ed.2d 40 (1981). "This is a two part test:

the government interest must be legitimate and the

challenged classification must be rationally related to the

furtherance of that interest." Medora v. Colautti, 602

F.2d 1149, 1153 (3d Cir.1979).

In some instances, courts have departed from their

"extreme deference to the legislature and engaged in a

meaningful rational basis review." The Supreme Court,

1987 Term Leading Cases, 102 Harv.L.Rev. 201 (1988).

In Cleburne, historical prejudice against the mentally

retarded caused the Supreme Court to more carefully

scrutinize a zoning board's actions. 473 U.S. at 450, 105

S.Ct. at 3259. The Third Circuit engaged in a more

rigorous rational basis review in Medora v. Colautti, 602

F.2d 1149. See also Ranschburg v. Toan, 709 F.2d 1207

(8th Cir.1983).

In Medora, the Third Circuit said "[t]he importance of

receiving welfare is not the sole reason we feel that close

16a

at 1154 n. 12. "While the class definition here is based

in some sense on the nonsuspect basis of wealth . . ., it is

also based on the appellees’ status as blind, aged, or

disabled . . . ." Id. (emphasis added). "When

classifications involve sensitive but nonsuspect classes,

the courts may engage in a more substantial analysis of

rationality." Jd.

The disabled are a sensitive class, and are often

discriminated against.’ See, e.g, O'Connor v.

Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396

Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

7 Only recently have legislatures and courts begun to realize

that, intentionally or not, the disabled have been

systematically excluded from and denied access to

governmental privileges and benefits that appear to have been

made available to all on equal terms.

* * * * * * *

The physical and mental impairments of the disabled have

been the basis of their persistent social stigmatization and

isolation, including the uninhibited exercise, in the not too

distant past, of institutionalization as a mechanism for

segregating those handicapped persons whose disabilities even

their families did not understand or accept. Even when not

physically isolated from society, disabled persons may

experience painful ostracism in a culture that puts great

weight on conformity to norms of appearance or performance

that not all can meet. But whatever the source of the

discrimination against the disabled -- whether from overtly

invidious discrimination and stereotyping, or from an

insidious blindness to the ramifications of rules that operate

inexorably to exclude the disabled -- the rationale for

semisuspect treatment of the handicapped is compelling. A

history of continuous and pervasive deprivations and

exclusions, the product of both legislative blindness and bias

towards the disabled, justifies the exercise of heightened

judicial scrutiny.

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw, § 16-31, at

1594-97 (2d ed. 1988).

17a

(1975); Alexander v. Choate, 469 U.S. 287, 295-98, 105

S.Ct. 712, 717-19, 83 L.Ed.2d 661 (1985), Cleburne,

473 U.S. at 461, 105 S.Ct. at 3265; Note, Employment

Discrimination Against the Handicapped and Section

504 of the Rehabilitation Act: An Essay on Legal

Evasiveness, 97 HARV.L.REV. 997 (1984). The Court

finds that the severity of Spragens' disability, the

undeniable discrimination against him,® and the fact that

he lost all benefits? warrants a more exacting rational

basis review.

A classification "must be reasonable, not arbitrary, and

must rest upon some ground of difference having a fair

and substantial relationship to the object of the

legislation, so that all persons similarly circumstanced

shall be treated alike." Medora, 602 F.2d at 1152,

quoting Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251,

254, 30 L.Ed.2d 225 (1971). The issue is whether there

is a relevant characteristic of the blind as a class that

justifies the disparate treatment. See Cleburne, 473 U.S.

at 453, 105 S.Ct. at 3261; Zobel v. Williams, 457 U.S.

55, 70, 102 S.Ct. 2309, 2318, 72 L.Ed.2d 672 (1982).

The United States asserts that Congress’ objective in

passing 42 U.S.C. § 423(d)(4) was to provide greater

assistance to the blind. The legislative history supports

this contention. In arguing for passage of the Senate

bill,!° Senator Bayh stated that the "earning limitation"

8 In Spragens' social security file, one of the SSA employees

referred to Spragens as "hideously deformed."

9 If the discrepant treatment "involves denial of all aid, the

courts will more closely examine the rationality of the underlying

classification." Medora, 602 F.2d at 1154; Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164, 172, 92, S.Ct. 1400, 1405,

31 L.Ed.2d 768 (1972).

10 In 1977, the United States Senate passed an amendment to

the Social Security Act that, among other things, would have

permitted the Secretary to consider a legally blind worker disabled

"regardless of earnings and capacity to work." Staffs of the House

Subcommittee on Social Security of the Comm. on Ways and

18a

to qualify for disability benefits should be removed for

blind people because "[tJhe blind, as a group, suffer

largely artificial impediments when they seek to enter

and compete in the labor market. The economic

penalties exacted by discrimination are evident in a

dramatic 70 percent rate of unemployment and

underemployment." 123 Cong.Rec. 37,139-40 (1977).

However, the Eighth Circuit has stated that "[a]

decision to favor one group of recipients over another by

itself is not a legitimate interest." Ranschburg, 709 F.2d

at 1211 (emphasis added). In addition, the Third Circuit

noted:

[I]t is always possible to hypothesize that the purpose

underlying a classification is the goal of treating one

class differently from another. A statute's

classifications will invariably be rationally related to

a purpose so defined, since the "purpose" is, in effect,

a restatement of the classification. To engage in such

hypothesizing, however, would render the rational

basis standard no standard at all.

Delaware River Basin Commission v. Bucks County

Water & Sewer Authority, 641 F.2d 1087, 1099-1100

(3d Cir.1981). Therefore, the Court finds that providing

greater assistance to the blind Dy itself is not a legitimate

objective.

The legislative history supporting 42 U.S.C.

§ 423(d)(4) suggests that another Congressional

Means and Senate Comm. on Finance, 95th Cong., Ist Sess.,

Social Security Financing Amendments of 1977, H.R. 9346,

Comparison of House and Senate Bills With Existing Law 38-39

(Joint Comm. Print, Nov. 28, 1977). The House bill did not have

a similar provision benefiting the blind. Jd The conference

committee bill, which became law, provided that the amount of

earnings used to determine SGA for the blind, would be

"increased to the same exempt amounts as for persons 65 and over

under the liberalized retirement test... ."._ 123 Cong.Rec. 39,032

(1977).

19a

objective may be to give greater federal assistance to the

most needy. Senate and House conference committee

members felt that "blind persons experience greater

ongoing financial problems in seeking permanent

employment than other disabled individuals... ."_ 123

Cong.Rec. 39,032 (1977) (emphasis added).

While giving greater federal assistance to the most

needy is a legitimate objective, the Court holds that 42

U.S.C. § 423(d)(4) is not rationally related to that

objective. See Ranschburg, 709 F.2d at 1210. More

specifically, the Court does not believe that a blind

person suffers greater ongoing financial problems in

seeking permanent employment than a person such as

Spragens, who is severely disabled by arthrogryposis.

The Court reasons that arthrogryposis cannot be

rationally distinguished trom blindness in this context.

Like blindness, arthrogryposis is a permanent and

irreversible condition. A blind person and a

quadriplegic with arthrogryposis both must overcome

obstacles to secure and hold employment. In

overcoming the loss of sight, a blind person can use

braille and computers as tools, and a seeing eye dog to

assist with mobility. Spragens has no use of his arms

and limited use of his legs, and cannot walk.

Nevertheless, he is able to use a computer to assist him

in his work as a free-lance book indexer.!! In addition,

he has a motorized wheelchair which partially

compensates for his inability to walk.

Although Spragens is intellectually capable, his

employment is severely limited by his physical

disabilities. Arthrogryposis has emaciated his body,

causing one SSA employee to refer to him as "hideously

deformed." In this respect, the Court believes that

discrimination against Spragens would be greater than

11 Spragens is able to write and type with his feet.

20a

that against a blind person.!2 For these reasons, the

Court concludes a blind person and a person like

Spragens are similarly situated, and that there are no

relevant characteristics of a blind person that can justify

such disparate treatment.

The Court finds that 42 U.S.C. § 423(d)(4) "ignores

the common denominator of need, and creates a

classification that bears no [rational] relation" to the

legislative purpose of giving greater assistance to the

most needy. Medora, 602 F.2d at 1152. Under the

terms of 42 U.S.C. § 423(d)(4), government benefits are

not made available to the blind and other severely

disabled persons on equal terms.

Although the United States has not done so, it may

argue that another reason for the classification at issue is

to save welfare costs. However, this is not a legitimate

objective. "The saving of welfare costs cannot justify an

otherwise invidious classification." Shapiro v.

Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22

L.Ed.2d 600 (1969).

The Court concludes that many of the statements about

the blind in the legislative history for 42 U.S.C.

§ 423(d)(4) apply equally to a person severely disabled

by arthrogryposis. Senator Bayh stated that "the

strongest argument for this proposal before the Senate is

the need to remove disincentives to gainful activity, and

to encourage every person to seek work, to contribute,

and to become independent." 123 Cong.Rec. 37,140

(1977). Like the blind, people severely disabled by

arthrogryposis "are being sidelined from productive

participation in our economy through an unintentional

12 The Court believes that Spragens "may experience painful

ostracism in a culture that puts great weight on conformity to

norms of appearance or performance that not all can meet."

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw, § 16-31, at

1594-97 (2d ed. 1988).

2la

bias against work, which has been built into the

disability insurance system." Jd. "It just does not make

sense to hold back people who want to overcome their

handicap and make their own way in the world." Jd. at

37, 141.

For the above-listed reasons, the Court finds that

Congress’ classification in 42 U.S.C. § 423(d)(4), which

singles out the blind for preferential treatment, is

arbitrary and discriminatory. As applied to Spragens, it

does not have "a fair and substantial relationship to the

object of the legislation ... .". Medora, 602 F.2d at

1152, quoting Reed, 404 U.S. at 76, 92 S.Ct. at 254. A

classification is not rationally bascd simply because

Congress chose to provide benefits to some but not to

others. See Ranschburg, 709 F.2d at 1211.

THEREFORE it is

ORDERED that the United States' motion to affirm the

administrative decision be, and the same is hereby

GRANTED.

ORDERED that 42 U.S.C. § 423(d)(4), as applied to

Spragens, violates the equal protection component of the

Fifth Amendment to the United States Constitution.

Therefore, plaintiffs motion for summary judgment is

hereby GRANTED.

ORDERED that the Social Security Administration

reinstate Spragens' eligibility to receive disability

benefits.

ORDERED that the Social Security Administration

pay Spragens all disability benefits for the period that he

was deemed to be ineligible because he was engaged in

substantial gainful activity.

22a

ORDERED that Spragens does not owe the Social

Security Administration $19,930, an amount that was

allegedly overpaid to Spragens for disability benefits.

23a

APPENDIX C

Statutory Provision

42 U.S.C. § 423(d)(4):

The Secretary shall by regulations prescribe the criteria

for determining when services performed or earnings

derived from services demonstrate an individual's ability

to engage in substantial gainful activity. No individual

who is blind shall be regarded as having demonstrated

an ability to engage in substantial gainful activity on the

basis of earnings that do not exceed the exempt amount

under section 403(f)(8) of this title which is applicable to

individuals described in subparagraph (D) thereof.

Notwithstanding the provisions of paragraph (2), an

individual whose services or earnings meet such criteria

shall, except for purposes of section 422(c) of this title,

be found not to be disabled. In determining whether an

individual is able to engage in substantial gainful activity

by reason of his earnings, where his disability is

sufficiently severe to result in a functional limitation

requiring assistance in order for him to work, there shall

be excluded from such earnings an amount equal to the

cost (to such individual) of any attendant care services,

medical devices, equipment, prostheses, and similar

items and services (not including routine drugs or

routine medical services unless such drugs or services

are necessary for the control of the disabling condition)

which are necessary (as determined by the Secretary in

regulations) for that purpose, whether or not such

assistance is also needed to enable him to carry out his

normal daily functions; except that the amounts to be

excluded shall be subject to zeasonable limits as the

Secretary may prescribe.

24a

APPENDIX D

Regulatory Provisions

20 CFR. § 404.430(d):

Method of determining monthly exempt amount for

taxable years ending after December 1977 for

beneficiaries, age 65 or over. (1) For purposes of

paragraph (a)(3) of this section, for all months of taxable

years ending after 1977, the applicable monthly exempt

amount for an individual who has attained (or, but for

the individual's death occurring after November 10,

1988, would have attained) retirement age as defined in

section 216(1) of the Act before the close of the taxable

year involved is --

(i) $333.33 1/3 for each month of any taxable year

ending in 1978;

(ii) $375 for each month of any taxable year ending in

1979;

(iii) $416.66 2/3 for each month of any taxable year

ending in 1980; and

(iv) $458.33 1/3 for each month of any taxable year

ending in 1981;

(v) $500 for each month of any taxable year ending in

1982;

(vi) $550 for each month of any taxable year ending in

1983;

(vii) $580 for each month of any taxable year ending in

1984;

(viii) $610 for each month of any taxable year ending

in 1985;

(ix) $650 for each month of any taxable year ending in

1986;

(x) $680 for each month of any taxable year ending in

1987;

SOL ee eee Wn PO De ate ELEAF aT A Breet OEE Re Se ee) NEL RON R SL ee ate, OO Mee ORY PN eT See Se ee ee Sean ee ae ees Te Te My LISP SED FA ed

25a

; eo) $700 for each month of any taxable year ending in

(xii) $740 for each month of any taxable year ending in

1989; and

(xiii) $780 for each month of any taxable year ending

in 1990.

(2) Fractional amounts listed in paragraph (d)(1) of this

section shall be rounded to the next higher whole dollar

amount, unless the individual shows that doing so results

in a different grace year (see § 404.435(a) and (c)).

* * * x *

20 C.F.R. § 404.1574(b)(2):

Earnings that will ordinarily show that you have

engaged in substantial gainful activity. We will

consider that your earnings from your work activities as

an employee show that you have engaged in substantial

gainful activity if --

(i) Your earnings averaged more than $200 a month in

calendar years prior to 1976;

(ii) Your earnings averaged more than $230 a month in

calendar year 1976;

(iii) Your earnings averaged more than $240 a month

in calendar year 1977;

(iv) Your earnings averaged more than $260 a month

in calendar year 1978;

(iii) Your earnings averaged more than $280 a month

in calendar year 1979;

(vi) Your earnings averaged more than $300 a month

in calendar years after 1979 and before 1990; or

(vii) Your earnings averaged more than $500 a month

in calendars years after 1989.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.