Opposition Brief — Spragens v. Shalala

ie | Supreme Court, U.S. |

( Vy) FILED

OFFICE GF THe Cicnn

In the Supreme Court of the Gnitetd States

OCTOBER TERM, 1994

PAUL E. SPRAGENS, PETITIONER

Vv.

DONNA E. SHALALA, SECRETARY OF

HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

_DrREwS. DAys, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

WILLIAM KANTER

ALFRED MOLLIN

Attorneys

Department of Justic

Washington, D.C. 205.0

(202) 514-2217

BESTAVAILABLE: COPY ©

QUESTION PRESENTED

Whether 42 U.S.C. 423(d)(4) and implementing regu-

lations, which allow blind people to earn more money

than may be earned by other claimants without becoming

ineligible for disability benefits, comport with equal

protection as applied to petitioner, a sighted person.

(1)

TABLE OF CONTENTS

Page

RRR SiS AES ESE AOR 1

ERIS Sis RUSSERT 1

ERSTE SERSIS Sel 2 ON ae OE DE 2

EES EES SUNT iced hE A TOR aD 6

TRISTE SSI ce ECAR OA ER ARRAS 16

TABLE OF AUTHORITIES

Cases:

Alexander v. Choate, 469 U.S. 287 (1985) ...cccccccccccccoceeeee. 15

Califano v. Aznavorian, 439 U.S. 170 (1978) ...ccccccccecceeee. 10

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432

I as earad haeeeiiaa ich anccbibinsniesaivevincaceceeneceeee 4, 7, 13

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

City of Phi hia, 6 F.3d 990 (8d Cir. 1998) .............. 14

Dandridge v. Williams, 397 U.S. 471 (1970) .u.eccccccccesecsesee 10

FCC v. Beach Communications, Inc., 113 S. Ct. 2096

ee mceeees 9

Heller v. Doe by Doe, 113 S. Ct. 2637 (1998) ....ccccccccccc..-. 7, 9, 12

High Tech Gays v. Defense Indus. Security Clearance

Office, 895 F.2d 563 (9th Cir. 1990) ............cccccccccssceeeeeee ~ |

Lebron v. National Railroad Passenger Corp., |

ee OE, i BONY occas ssccccdscresceccececcccsccoceceennse 12

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

ELISE SELLA OT ROR 14

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

a ccnemasvcnceeoencs 14

Nyquist v. Mauclet, 482 U.S. 1 (1977) ....ccccceccececccceceecceee 16

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

Nee as saceveinesvucsersoveseneees 8

Schweiker v. Wilson, 450 U.S. 221 (1981) ............ccccceeeeee 7-8, 9

Sullivan v. Everhart, 494 U.S. 83 (1990) .........cccccccccceseeee 4

United States Railroad Retirement Bad. v. Fritz,

EE Se 9

(III)

IV

Cases—Continued: Page

Weinberger v. Salfi, 422 U.S. 749 (1975) .............ssessecceeees 10

Constitution, statutes and regulations::

U.S. Const.:

Amend. V (Due Process Clause).............cccccccsssssssssssseee 4

Amend. XIV sieseseneesesenensneasessescnsacacessesnsosneesesetensnsececens 14

FD -casanasinisaisindeaanisedas naabenna an enaad cussed 14, 15

Americans With Disabilities Act of 1990, 42 U.S.C.

SOS WE GOD, siintiedincsccnnbascuhviaeaaa leas inion cies 12

42 U.S.C. 12101(a) (Supp. V 1998) ................cccsccossees 15

42 U.S.C. 12101(a)(7) (Supp. V 1998) .................eeee 12, 13

42 U.S.C. 12131 et seg. (Supp. V 1998) .............ccccee 14

Religious Freedom Restoration Act of 1998, 42 U.S.C.

re Bo Ee A ace ONT SAE Oe OE Ne Me Es 15

Social Security Act, 42 U.S.C. 401 et seq.:

Se Wisc Se Aik clinched hi hadedehsiitndtcipackedicaices 2,3

Oe RE te I esata a saicieciteacacntaetdashedaiaeetibiase wane 4

Se Te EE eedbnindvdcsciccnsdnapso oseienertusanbabauuaanadiooeei tas 3

1k WAI siiibiiek <c-dentiiecsennicenbinanduniipabininiadiniebins 2

er Re ERED siisnsttnncsnixcectactinaiotaeumediemaee 2

Ce re eee 2, 4, 5, 6, 8,9 10, 12

20 C.F.R.:

I Na 3

REE ee ai i a ater reel ee co 3

IE I iced ee 3

UI I esis sass c eccisiscdiccedbcacaelinaddbeaneeeessesecile 4

SOCEM GABP OOGD) cnccccccccccscccceccctondensnctesdcecacecee 2

Section 404.1574(b)(2)(vii) ...... piidticalinbiiuiaiaenilasaaiisaesins 3

UENO. SIDI whsrhcndnshuihicucenniocdbsscteadcbdiiaietiadeasons 3

Miscellaneous:

123 Cong. Rec. (1977):

ig ARE cilehadissnsesinipdbaibesbetaicinsnesapinidabbincieideaniti nie eaatiaesee hd 10

Sh. : MIME celsstesd dc ieak ocbinieosiessson blipemsapigeeunipalamidainitiaetiidiaitet Seen te 10

A... TER OD wissen civaigeseitereesgubadsinacdieessesiiacanenamennibnta a alice: 11

is EE cuhasecasis sibashaecauastlaupinabiitaammotaniaem tate ceia 3, 11

R. Stern, E. Gressman, 8S. Shapiro & K. Geller, Supreme

Cost: Prmatine CH Ot. FORD iccasciaissravorssusadindincsdleecctias 14

In the Supreme Court of the Giuited States

OCTOBER TERM, 1994

No. 94-1102

PAUL E. SPRAGENS, PETITIONER

v.

DONNA E. SHALALA, SECRETARY OF

HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-8a) is

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

(Pet. App. 9a-22a) is reported at 808 F. Supp. 1537.

JURISDICTION

The judgment of the court of appeals was entered on

September 22, 1994. The petition for a writ of certiorari

was filed on December 21, 1994. The jurisdiction of this

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

(1)

STATEMENT

1. a. The Social Security Act provides insurance

benefits for people who cannot engage in substantial

gainful activity because of a physical or mental dis-

ability. 42 U.S.C. 423(a). One requirement for eligibility

under the Act is thus the “inability to engage in any

substantial gainful activity.” 42 U.S.C. 423(d)(1)(A). The

Act authorizes the Secretary of Health and Human

Services (the Secretary) to “prescribe the criteria for

determining when services performed or earnings

derived from services demonstrate an individual’s ability

to engage in substantial gainful activity.” 42 U.S.C.

423(d)(4). Pursuant to that authority, the Secretary

provided by regulation that, for calendar years 1979

through 1989, if a claimant earned more than $300 per

month after deductions for relevant expenses, the

claimant was presumed to have engaged in substantial

gainful activity and therefore to be ineligible for

disability benefits. 20 C.F.R. 404.1574(b)(2)(vi).

The Act contains a special provision, however, con-

cerning the amount that blind people may earn before

being presumed to have engaged in substantial gainful

activity (42 U.S.C. 423(d)(4)):

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.

The referenced provision, 42 U.S.C. 403(f)(8), prescribes

the monthly earnings test for a retired person aged 65-

69. The legislative history of the earnings provision for

the blind in Section 423(d)(4) indicates that its purpose

3

was to increase the amount that blind people could earn

and still remain eligible for disability benefits by

applying the “liberalized retirement test” to them. 123

Cong. Rec. 39,032 (1977). For 1986, the “exempt amount”

for purposes of Section 423(d)(4) was set by regulation at

$650 per month. 20 C.F.R. 404.430(d)(ix).

Thus, in 1986, blind claimants could earn up to $650 per

month, whereas sighted claimants could earn only up to

$300 per month, and remain eligible for disability

benefits. See 42 U.S.C. 403(f)(8), 416(/); 20 C.F.R.

404.430, 404.1584(d).'

b. Petitioner suffers from arthrogryposis, a deform-

ity of the joints. Pet. App. la, 9a. He cannot use his

arms, has only limited use of his legs, and must use a

motorized wheel chair. Jd. at la n.l, 9a. He has,

however, learned to type with his feet and uses that

ability to work as a free-lance book indexer. See ibid.

Petitioner became eligible for disability benefits in

1976. Pet. App. 10a. In 1988, after a periodic review, the

Secretary determined that, beginning in 1986, peti-

tioner’s average monthly income exceeded $300. Under

the Secretary’s regulations, therefore, petitioner had

been engaging in substantial gainful activity for about

two years. In an initial decision and on reconsideration,

the Secretary terminated petitioner’s benefits and deter-

mined that an overpayment of approximately $19,000 (for

some prior months) had been made. /d. at la-2a.

Petitioner took an administrative appeal. In that

appeal, he did not argue that the Secretary misapplied or

misinterpreted the applicable statutory and regulatory

provisions. Nor did he dispute that, under those pro-

visions, he became ineligible for benefits in 1986. His

1 Those amounts have been increased for later calendar years.

See 20 C.F.R. 404.430(d); 20 C.F.R. 404.1574(b)(2)(vii).

4

sole contention was that the statutory and regulatory

earnings provisions for the blind in 42 U.S.C. 423(d)(4)

and implementing regulations are unconstitutional. An

administrative law judge (ALJ) declined to address

petitioner’s constitutional argument and upheld the

Secretary’s initial and reconsidered determination. The

Appeals Council within the Social Security Adminis-

tration affirmed the ALJ’s decision, making that decision

the final decision of the Secretary on petitioner’s claim.

Pet. App. 2a.”

2. Petitioner then brought this action in the United

States District Court for the Northern District of

Wyoming, seeking review of the Secretary’s decision.

See 42 U.S.C. 405(g). On the government’s motion to

affirm the Secretary’s decision and petitioner’s motion

for summary judgment, the court held that, as applied to

petitioner, 42 U.S.C. 423(d)(4) violates the equal pro-

tection component of the Due Process Clause of the

Fifth Amendment. See Pet. App. 21a. The district court

first determined, relying primarily upon Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 482 (1985), that

2 The Secretary’s regulations provide for a waiver of the

recovery of any overpayment if the individual receiving the

overpayment is without fault and if, among other things, recovery

would deprive a person of income required for living expenses.

See 20 C.F.R. 404.506; see also Sullivan v. Everhart, 494 U.S. 83, 86

(1990). Petitioner could have sought a waiver of recovery of the

$19,000 overpayment in his administrative appeal. Moreover,

petitioner was aware of the waiver procedure; he told the ALJ:

“(I]f we leave the overpayment issue unresolved, then there’s more

at stake in my constitutional challenge and a judge may be more

willing to listen to it since it not only involves my right to continue

receiving benefits but also involves $19,000 in alleged over-

payment.” C.A. App. 66. He then stated that he did not wish a

ruling on the waiver-of-recovery issue at that time. Jbid.

5

the provision was subject to “a more substantial” stand-

ard of review than the usual “rational basis” standard,

because “[t]he disabled are a sensitive class, and are

often discriminated against.” Pet. App. 16a.

Applying that standard, the district court rejected the

government’s argument that the earnings provision for

the blind is justified by Congress’s determination that

the blind, as a class, suffer greater financial problems in

seeking permanent employment than do people with

other disabilities. Pet. App. 17a-18a. The court recog-

nized that the legislative history of the provision

reflected such a determination. Jd. at 17a-19a & n.10.

But the court disagreed with that determination, at least

on the facts of this case, stating: “(T]he Court does not

believe that a blind person suffers greater ongoing

financial problems in securing permanent employment

than a person such as [petitioner].” Jd. at 19a (emphasis

omitted).

In addition to declaring 42 U.S.C. 423(d)(4) uncon-

stitutional, the district court ordered the Social

Security Administration to “reinstate [petitioner’s]

eligibility to receive disability benefits” and to pay him

“all disability benefits for the period that. he was deemed

to be ineligible because he was engaged in substantial

gainful activity.” Pet. App. 21a.’

3. The court of appeals reversed the district court’s

award of summary judgment for petitioner on his

8 Although the district court sustained petitioner’s equal

protection challenge, it granted the government’s motion to affirm

the Secretary’s decision. Pet. App. 14a, 2la. The affirmance

reflected the court’s determination that, without regard to

petitioner’s constitutional challenge, “there is substantial evidence

in the record to support the administrative finding that [peti-

tioner] was engaged in substantial gainful activity” under the

relevant statutory and regulatory provisions. /d. at 13a.

6

constitutional claim. Pet. App. la-8a. The court of

appeals held, first, that “the ‘rational basis’ test is the

proper standard of review,” and not the “more exacting

standard” used by the district court. Jd. at 5a. The court

of appeals explained that “a classification applying to

blind persons is not suspect, or even quasi-suspect.” Id.

at 6a.* The court further held that Section 423(d)(4) and

its implementing regulations have a rational basis (Pet.

App. 6a (citation omitted)):

[I]t 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 [peti-

tioner] may have “more disability” than some blind

persons does not change the result. A classification

scheme of this sort does not have to be perfect.

ARGUMENT

The court of appeals correctly rejected petitioner’s

equal protection challenge to the statutory and

regulatory provisions that allow blind people to earn

more money without becoming ineligible for disability

benefits than other claimants are allowed to earn. This

Court’s decisions make clear that the rational basis

standard is the appropriate standard for judicial review

of a federal statute dispensing benefits among the

disabled. The court of appeals also correctly held that

the provisions at issue here have a rational basis. Those

holdings do not conflict with any decision of this Court

4 The court of appeals added that the standard of review “may

be academic in a sense, since, regardless of the standard used, the

result in the instant case would, in [its] view, be the same.” Pet.

App. 6a.

7

or another court of appeals. Further review is therefore

unwarranted.

1. Petitioner contends that Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 482 (1985), requires some-

thing “beyond ordinary rational basis review” of the

earnings provision for the blind. Pet. 11. The court of

appeals correctly rejected that contention. See Pet. App.

5a-6a.

In Cleburne, this Court held that the court of appeals

in that case had erred by applying “a more exacting

standard of judicial review than is normally accorded

economic and social legislation” to a local zoning

ordinance that required group homes for the mentally

retarded to obtain special use permits. 473 U.S. at 442.

The Court determined that mental retardation is not a

suspect or quasi-suspect classification. Id. at 442-447.

Based on that determination, the Court concluded that

“{t]o withstand equal protection review, legislation that

distinguishes between the mentally retarded and others

must be rationally related to a legitimate governmental

purpose.” Id. at 446.

Heller v. Doe by Doe, 113 S. Ct. 2637 (1993), defeats

petitioner’s contention that Cleburne supports the

application of something “beyond ordinary rational basis

review” (Pet. 11) in this case. Heller concerned an equal

protection challenge to state involuntary commitment

statutes that treated the mentally retarded differently

from the mentally ill. 113 S. Ct. at 2640-2641. In dis-

cussing the appropriate standard of review, the Court

stated (id. at 2643):

We have applied rational-basis review in previous

cases involving the mentally retarded and the

mentally ill. See Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 482 (1985) * * *; Schweiker v.

8

Wilson, [450 U.S. 221 (1981)]. In neither case did we

purport to apply a different standard of rational-basis

review from [the traditional deferential test] just

described.

It is especially clear from Heller’s citation to Schweiker

v. Wilson that the traditional rational basis standard

applies to a federal statute, such as 42 U.S.C. 423(d)(4),

that distributes welfare benefits among non-suspect

classes of the needy. See Wilson, 450 U.S. at 222, 230-239

(applying traditional rational basis standard to uphold

provision that withholds Supplemental Security Income

benefits from otherwise eligible individuals aged 21

through 64 in public mental institutions that do not

receive Medicaid funds for the individuals’ care).

Heller also defeats petitioner’s contention (Pet. 11)

that further review is warranted to resolve divisions

among the lower federal courts regarding the standard

applied in Cleburne. Petitioner cites decisions from

only one court of appeals that have read Cleburne to

require greater scrutiny than normally accorded under

rational basis review. See Pet. 12 (citing Pruitt v.

Cheney, 963 F.2d 1160 (9th Cir.), cert. denied, 113 S. Ct.

655 (1992), and High Tech Gays v. Defense Indus.

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

Those decisions, however, pre-date Heller. Moreover,

none of them concerns a federal statute, such as Section

423(d)(4), that does not discriminate against the disabled

but instead distributes welfare benefits among cate-

gories of disabled persons in proportion to Congress’s

reasonable determination regarding their relative

needs.”

5 Petitioner also cites decisions in which other courts of appeals

have “assum[ed] arguendo that heightened scrutiny applies” to

legislative classifications based on disability. Pet. 12. Those deci-

9

Thus, the court of appeals in this case correctly held

that Section 423(d)(4) and its implementing regulations

must be upheld “if there is ‘any reasonably conceivable

state of facts that could provide a rational basis for the

classification.’” Pet. App. 6a n.3 (quoting FCC v. Beach

Communications, Inc., 113 S. Ct. 2096, 2101 (1993));

accord Heller, 113 S. Ct. at 2642-2643 (quoting Beach

Communications).

2. The court of appeals, applying the foregoing

standard, correctly held that Section 423(d)(4) and its

implementing regulations have a rational basis and

therefore do not violate equal protection. See Pet. App.

6a-8a. Petitioner’s contrary claim (Pet. 14-20) is without

merit.

As an initial matter, petitioner errs in asserting (Pet.

16-17) that the statute and regulations fail the rational

basis test because petitioner suffers a degree of

disability comparable to that caused by blindness. A

federal statute providing for the payment of government

benefits “inevitably involves the kind of line-drawing

that will leave some comparably needy person outside the

favored circle.” Schweiker v. Wilson, 450 U.S. at 238.°

Such a statute is not irrational merely because the line

“is not made with mathematical nicety or because in

sions also pre-date Heller and, in any event, do not conflict with the

decision below.

6 See also Beach Communications, 113 S. Ct. at 2102 (“Defining

the class of persons subject to a regulatory requirement—much

like classifying government beneficiaries—‘inevitably requires that

some persons who have an almost equally strong claim to favored

treatment be placed on different sides of the line, and the fact

{that} the line might have been drawn differently at some points is

a matter for legislative, rather than judicial, consideration.’” )

(quoting United States Railroad Retirement Bd. v. Fritz, 449 US.

166, 179 (1980)).

10

practice it results in some inequality.” Dandridge v.

Williams, 397 U.S. 471, 485 (1970). In particular,

rational basis review provides “no basis for [a court’s]

requiring individualized determinations [of neediness]

when Congress can rationally conclude * * * that

generalized rules are appropriate to its purposes and

concerns.” Weinberger v. Salfi, 422 U.S. 749, 785 (1975);

see also Califano v. Aznavorian, 439 U.S. 170, 177-178

(1978).

The legislative history of the earnings provision for

the blind in Section 423(d)(4) shows that Congress

considered blindness to be “a distinct and unique

condition.” 123 Cong. Rec. 37,139 (1977) (statement of

Sen. Bayh). In arguing for passage of a special earnings

provision for the blind, Senator Bayh explained (ibid.):

The 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. Any

group with such a high rate merits being singled out

for compensatory help, for particular assistance to

meet their problems.

In addition, Senator Humphrey observed that the bill

provided “reasonable exceptions to redress handicaps and

disadvantages imposed by social and economic barriers

that have barred the blind, far more than their disability,

7 Petitioner thus errs in contending that the court of appeals

“erred by disposing of petitioner’s challenge as if it were a facial

rather than an as applied challenge.” Pet. 16. Rational basis

challenges, as applied, do not require a court to consider whether a

classification is rational in light of a particular individual’s

circumstances; it is the rationality of the distinction between

categories that is important.

11

from earning a decent and secure livelihood.” Jd. at

37,140.83 Representative Bingham stated that “con-

cerned members of the House [believed that] blind

persons experience greater ongoing financial problems

in seeking permanent employment than other disabled

individuals, which require special consideration.” Jd. at

39,032.

Congress could reasonably determine that the blind, as

a group, suffer greater financial hardships because of

their blindness than do people with other disabilities, as

a group. Blindness poses a unique challenge to obtaining

gainful employment, because vision is commonly

regarded as central to the ability to: (1) perform physical

labor that requires hand-to-eye coordination, (2) navigate

to and from places of employment, and (3) process

information, which is delivered, in our society, over-

whelmingly through the printed word or visual images.

It is, of course, true that many blind people are

successful in the job market, as in all other areas of

society. It is also true that another disability might, in a

particular case, pose challenges to engaging in gainful

employment that are comparable to those posed by

blindness. Neither fact, however, provides a basis for

striking down the statutory provisions and regulations

at issue under the rational basis test.”

8 Senator Humphrey also noted that the “unemployment rate

of 70 percent * * * is related more directly to social attitudes and

discrimination than to incapacity.” 123 Cong. Rec. 37,140 (1977).

And Senator Bayh noted studies showing a “dramatic” rate of

unemployment and underemployment among the blind attributable

to the “substantial and overwhelming economic disadvantages” the

blind must face. Jd. at 4816.

® In any event, the court of appeals correctly held that the

earnings provisions for the blind would be constitutional even

under more exacting scrutiny. Pet. App. 6a. That holding, of

12

3. In this Court, petitioner argues that heightened

scrutiny of the earnings provisions for the blind in 42

U.S.C. 423(d)(4) and implementing regulations is re-

quired by the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12101 et seg. That argument is not

properly presented in this Court, because it was not

presented in the courts below. In any event, the

argument is without merit.

Petitioner did not argue in the courts below

that heightened scrutiny was required by the ADA; he

relied solely on Cleburne. See, e.g., Pet. C.A. Br. 13

(“‘Cleburne’ Equal Protection analysis applies to Paul

Spragens.”). He cited the ADA only as support for what

he regarded as a more exacting rational basis standard

adopted in Cleburne. See id. at 15 (“In light of the ADA,

to apply any rational basis reasoning other than the one

explained in Cleburne and its progeny to Mr. Spragens

would be illogical.”). In Heller, this Court held that,

when a “heightened scrutiny argument [is pressed] for

the first time [in this Court],” it would be “inappro-

priate,” as well as “imprudent and unfair,” to consider

that question for the first time in this Court. 113 S. Ct.

at 2642. That holding fully applies here.”

course, weighs against further review of the issue of the proper

level of scrutiny.

10 This Court’s recent decision in Lebron v. National Railroad

Passenger Corp., No. 93-1525 (Feb. 21, 1995), is not to the

contrary. In Lebron, the Court exercised its discretion to address

an argument that had not been raised in the courts below, because

the argument concerned an issue that was logically prior to the

issue presented by an argument that had been raised in the lower

courts, and because resolution of the two arguments involved

overlapping considerations. Lebron, slip op. 7. Neither circum-

stance obtains with respect to petitioner’s ADA-based argument.

That argument need not be resolved in order to address peti-

13

Petitioner’s ADA argument relies on the following

statement in Cleburne, 473 U.S. at 439-440 (emphasis

added):

Section 5 of the [Fourteenth] Amendment empowers

Congress to enforce th[e! [equal protection] mandate

[of that Amendment], but absent controlling con-

gressional direction, the courts have themselves

devised standards for determining the validity of

state legislation or other officia! action that is

challenged as denying equal protection. The general

rule is that legislation is presumed to be valid and

will be sustained if the classification drawn by the

statute is rationally related to a legitimate state

interest.

Petitioner asserts that the findings in the ADA

regarding discrimination against the disabled furnish

“the ‘controlling congressional direction’ that was

missing in Cleburne.” Pet. 9. Petitioner argues that,

“[bJecause the ADA was expressly enacted pursuant to

Congress’s power under Section 5 of the Fourteenth

Amendment, * * * the ADA should be seen as a

directive to the judiciary to apply heightened scrutiny to

laws that differentially treat the disabled.” Pet. 8-9.

Even assuming petitioner’s argument were properly

before the Court, it does not warrant further review in

this case, for several reasons. First, the provision in the

ADA upon which petitioner relies (Pet. 8) merely sets

forth several of the findings upon which the Act was

based. See 42 U.S.C. 12101(a)(7) (Supp. V 1993). The pro-

vision does not, on its face, direct courts to do anything.

Accordingly, the two courts of appeals that have

tioner’s Cleburze argument, and resolution of the two arguments

involves quite different considerations.

14

considered the issue have held that the ADA does not

“alter the standard [of review] of constitutional equal

protection claims.” More v. Farrier, 984 F.2d 269, 271

n.4 (8th Cir.), cert. denied, 114 S. Ct. 74 (1993); see Con-

tractors Ass’n of Eastern Pennsylvania, Inc. v. City of

Philadelphia, 6 F.3d 990 (8d Cir. 1993)."" In the absence

of a circuit conflict and of a proper airing of the issue

below, this case provides no occasion for further review

of petitioner’s argument.

Second, petitioner errs in asserting (Pet. 8) that

Congress’s power under Section 5 of the Fourteenth

Amendment provides a basis for applying heightened

scrutiny in this case. This case concerns a federal

statute and regulations; the equal protection mandate of

the Fourteenth Amendment, however, is directed to the

States. Moreover, the substantive provisions of the ADA

do not apply to the administration of the Social Security

disability program. Compare 42 U.S.C. 12131 et seq.

(prohibiting discrimination in state and local programs).

There accordingly is no basis for relying on a prefatory

congressional finding in the ADA in order to subject

distinctions drawn in the federally administered Social

Security disability program to a different standard of

judicial review than would have applied in the absence of

the ADA. There is, in other words, no basis for con-

cluding that Congress, in enacting the ADA, intended to

call into question the myriad judgments and dis-

11 Petitioner cites one district court decision holding that the

ADA requires heightened scrutiny of classifications based on

disability. Pet. 10 (citing Martin v. Voinovich, 840 F. Supp. 1175,

1210 (S.D. Ohio 1993)). However, this “Court will not grant

certiorari to review a decision of a federal court of appeals merely

because it is in direct conflict on a point of federal law with a

decision rendered by a district court.” R. Stern, E. Gressman, S.

Shapiro & K. Geller, Supreme Court Practice 178 (7th ed. 1993).

15

tinctions that have long been made regarding various

impairments under the Social Security disability

program, cf. Alexander v. Choate, 469 U.S. 287, 307

(1985)—much less to authorize the federal courts to hold

a provision of the Social Security Act unconstitutional.

Congress presumably would have authority under

provisions of the Constitution other than Section 5 of the

Fourteenth Amendment to enact legislation requiring

the federal courts to subject features of federal benefit

programs to some sort of exacting judicial review. Cf.

Religious Freedom Restoration Act of 1993 (RFRA), 42

U.S.C. 2000bb et seq. But, contrary to petitioner’s sug-

gestion, the question whether Congress has actually

exercised such authority in the ADA is quite distinct

from the question whether Congress has exercised its

authority under Section 5 to subject state and local

statutory provisions to more exacting judicial scrutiny

than would otherwise apply.

Finally, the ADA findings upon which petitioner relies

are not relevant to the classifications of relative need

that are at issue here. The ADA findings detail the ways

in which disabled people, as a class, are treated less

favorably in the work force than people without dis-

abilities. See 42 U.S.C. 12101(a) (Supp. V 1993). The

provisions of the Social Security Act and implementing

regulations at issue here do not treat disabled people less

favorably than non-disabled people. Indeed, the purpose

of the disability program as a whole is to provide benefits

to people with disabilities that prevent them from

engaging in substantial gainful employment. The pro-

visions petitioner challenges accomplish that purpose by

making a distinction within the class of disabled persons

who apply for benefits. That distinction reflects Con-

16

gress’s reasonable determination of where the greatest

need lies, rather than any invidious discrimination.”

Similar distinctions are made in every social welfare

program. If Congress had intended in the ADA to

subject that sort of distinction to heightened scrutiny, it

would have made that intention unmistakably plain in the

text of the ADA. In the absence of such an expression of

intent, the court of appeals applied the proper standard of

review to the provisions at issue.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. Day3, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

WILLIAM KANTER

ALFRED MOLLIN

Attorneys

MARCH 1995

12 Petitioner cites decisions of this Court that, he contends,

applied strict scrutiny to classifications that divided the suspect

class “into two subgroups.” Those decisions, however, concern

circumstances where only part of a suspect chss is disadvantaged

compared to the nonsuspect class. Nyquist v.Mauclet, 432 U.S. 1

(1977), for example, concerned the denial of state financial

assistance to certain resident aliens. Such tases are inapposite

here, because the class assertedly entitled to heightened scrutiny

(people with disabilities that preclude substantial gainful

einployment) is treated favorably compared :o those outside the

class.