MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS V. FRANK KUEHNEP, ET AL. No. 83-1593 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the Secretary of Health and Human Services, the Commissioner of Social Security, the Secretary of the Pennsylvania Department of Labor and Industry, and the Director of the Pennsylvania Disability Determination Bureau, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PARTIES TO THE PROCEEDING The petitioners are Margaret M. Heckler, Secretary of Health and Human Services; Martha A. McSteen, Acting Commissioner of Social Security; Barry Stern, Secretary of the Pennsylvania Department of Labor and Industry; and John Delpaine, Director of the Pennsylvania Disability Determination Bureau. The named respondent are Frank Kuehner, Dorothy Burayak, Richard Burns, Alice Hetherington, Frank Jennings, Jr., Philip Fisher, Clinton Royal, Solomon Katz, Raymond Staniewicz, James N. McKeown, James Loughlin, Margaret Douglas, Lawrence Cook, Steven Sverdlow, Elaine Fleigelman, and Riva Yanovskaya. The named respondents are representatives of a class consisting of "all Pennsylvania Social Security Disability Insurance and Supplemental Security Income disability beneficiaries whose benefits have been terminated or are threatened with termination and who have presented claims for continued disability" (C.A. App. 40). TABLE OF CONTENTS Opinions below Jurisdiction Statutory and regulatory provisions involved Statement: A. The statutory and regulatory framework B. The proceedings in this case Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-34a) is reported at 717 F.2d 813. The opinion of the district court (App., infra, 39a-45a) is reported at 547 F. Supp. 49. JURISDICTION The judgment of the court of appeals (App., infra, 35a-36a) was entered on September 19, 1983, and a petition for rehearing was denied on November 28, 1983 (App., infra, 37a-38a). On February 21, l984, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including March 27, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 28 U.S.C. (Supp. V) 1331, 28 U.S.C. 1361, relevant provisions of the Social Security Act, and 20 C.F.R. 416.903 are reproduced at App., infra, 46a-56a. QUESTION PRESENTED Whether, in the absence of exhaustion of administrative remedies, the district court had jurisdiction under 42 U.S.C. (Supp. V) 405(g), 28 U.S.C. (Supp. V) 1331, or 28 U.S.C. 1361 over this action challenging the standards and procedures applied by the Secretary of Health and Human Services and state officials to determine whether an individual continues to be eligible for disability benefits under Title II or Title XVI of the Social Security Act. STATEMENT A. The Statutory and Regulatory Framework Titles II and XVI of the Social Security Act provide for the payment of disability benefits to a person who, because of a physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months, is unable to do his previous work or to "engage in any * * * kind of substantial gainful work which exists in the national economy." 42 U.S.C. 423(d)(2)(A), 1382c (a)(3)(B). An individual who is found to be disabled thereafter may continue to receive benefits only for as long as his status -- medical and otherwise -- continues to satisfy the statutory definition of disability. 42 U.S.C. (& Supp. V) 423(a)(1), 425; 20 C.F.R. 404.1594, 404.1597. Accordingly, Congress has provided for the Secretary, at least once every three years, to review the cases of individuals who previously were found to be disabled under Title II in order to ascertain whether they continue to be eligible for benefits. 42 U.S.C. (Supp. V) 421(h). The Secretary has provided for a parallel program of periodic review under the Title XVI Supplemental Security Income (SSI) program. When the individual's case is reviewed, he bears the burden of showing that he continues to have a physical or mental impairment of sufficient severity to satisfy the statutory standard of disability. Mathews v. Eldrige, 424 U.S. 319, 336 (1976) The initial determination whether a person receiving benefits is still disabled ordinarily is made by a state agency, pursuant to regulations, guidelines, and performance standards established by the Secretary. 42 U.S.C. (& Supp. V) 421(a), 1383(a); 20 C.F.R. 404.1503, 416,903. The state agency first notifies the individual that his case has been selected for review and inquires about his current medical condition and the identity of his treating physician or medical facility. 20 C.F.R. 404.1593, 416,993. If the state agency then makes a tentative determination that the disability has ceased, the individual is given an advance written notice and explanation and is informed that he has 10 days within which to submit any additional information. 20 C.F.R. 404.1594-404.1595, 416,994. After this 10-day period and the receipt of any further evidence, the state agency makes its initial determination. See Mathews v. Eldridge, 424 U.S. at 337-338. Some state agency determinations in turn are subject to review by the Social Security Administration (SSA) prior to their effectuation, in order to ensure the quality and uniformity of state decisions and compliance with governing procedures. See 42 U.S.C. (Supp. V) 421(c). If an individual receiving disability benefits under Title XVI of the Act is dissatisfied with the initial determination, the next step in the administrative process is the statutorily mandated opportunity for an evidentiary hearing before an administrative law judge (ALJ) in SSA. 42 U.S.C. (Supp. V) 1383(c)(1); 20 C.F.R. 416;1407, 416.1429-416.1465. Because entitlement to SSA benefits, unlike Title II benefits, is based on need (42 U.S.C. 1382(a), the Secretary has implemented this Court's decision in Goldberg v. Kelly, 397 U.S. 254 (1970), by providing that the actual payment of benefits will not be terminated until after the ALJ has rendered his decision following the hearing. 20 C.F.R. 416.1336(b). If an individual receiving disability benefits under Title II is dissatisfied with the initial determination, he must request reconsideration of that determination before obtaining an ALJ hearing. 20 C.F.R. 404.907-404.921. Under amendments to the Act effective on January 1, 1984, the individual must be afforded an opportunity for a face-to-face evidentiary hearing at this reconsideration stage. Pub. L. No. 97-455, Section 4, 96 Stat. 2499, to be codified at 42 U.S.C. 405(b)(2). If the decision on reconsideration is adverse to the claimant, he then is entitled to an ALJ hearing. 42 U.S.C. (Supp. V) 421(d), 405(b); 20 C.F.R. 404.944-404.965. Congress enacted temporary legislation in 1982 permitting the claimant in a Title II disability cessation case to elect to receive interim benefits pending receipt of the ALJ'S decision, subject to recoupment if the determination that his disability ceased is affirmed. /1/ If the decision by the ALJ after a hearing is adverse, the Title II or Title XVI claimant may seek review by the Appeals Council in SSA. 20 C.F.R. 404.967-404.983, 416.1467-416.1483. In addition, in Section 304(g) of the Social Security Disability Amendments of 1980 (94 Stat. 456), Congress directed the secretary to institute a program for the Appeals Council to review some ALJ decisions on its own motion, in order to ensure accuracy and uniformity among ALJ decisions. Only after the Appeals Council has either denied review of the ALJ's decision or has granted review and rendered a decision is the Secretary deemed to have rendered her "final decision" or "final determination" on the claim, which is then subject to judicial review in federal district court pursuant to 42 U.S.C. (Supp. V) 405(g). See 42 U.S.C. (& Supp. V) 421(d), 1383(c) (3); 20 C.F.R. 404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481. B. The Proceedings in this Case 1. This class action was filed in the United States District Court for the Eastern District of Pennsylvania on April 29, 1982 against the Secretary of Health and Human Services and the Commissioner of Social Security, as well as the state officials responsible for administering the Social Security disability programs in Pennsylvania on the Secretary's behalf (C.A. App. 4). /2/ The plaintiffs alleged in their amended complaint (C.A. App. 1-29) filed on June 25, 1982 that the standards and procedures utilized by the defendants for determining whether an individual's disability has ceased violate the Social Security Act and the Due Process Clause of the Constitution. Specifically, the plaintiffs alleged as such violations: (1) that the defendants fail to show, as a condition to terminating benefits, that the claimant's medical condition has improved; (2) that the defendants fail to give presumptive effect to the prior determination of disability when they review a claimant's continuing eligibility; (3) that the defendants terminate benefits in the absence of fully developed medical evidence from all treating medical personnel and without giving appropriate weight to such evidence; and (4) that the defendants terminate benefits "without observing the sequential disability evaluation process by considering such factors as medical equivalence, combination of impairments, pain, and residual functional capacity" (C.A. App. 25-26; App., infra, 39a-40a). Jurisdiction was alleged to rest on 42 U.S.C. (Supp. V) 405(g), 42 U.S.C. 1383(c)(3), 28 U.S.C. (Supp. V) 1331, and 28 U.S.C. 1361 insofar as the case was brought against the federal defendants, and on 28 U.S.C. (Supp. V) 1343 and pendent jurisdiction as against the state defendants (C.A. App. 3). The district court certified a class of plaintiffs consisting of all disability beneficiaries under Title II and Title XVI of the Act in Pennsylvania "whose benefits have been terminated or are threatened with termination and who have presented claims for continued disability" (C.A. App. 40). The complaint alleged that there were 102,676 SSI disability beneficiaries and 158,565 Title II disability beneficiaries in Pennsylvania as of January 1982 whose cases were (or soon would be) subject to review and who therefore were potential class members (C.A. App. 5). There was no allegation, however, that these unnamed class members actually had received an initial determination that their disabilities had ceased or that they had exhausted their administrative remedies by seeking reconsideration, an ALJ hearing, and Appeals Council review. Moreover, none of the named plaintiffs who are still active members of the class had exhausted his administrative remedies, and in many instances the named plaintiffs had not even completed the reconsideration stage. /3/ 2. The district court dismissed the complaint for lack of subject matter jurisdiction. The court first held that jurisdiction did not lie under 42 U.S.C. (Supp. V) 405(g) because the plaintiffs had failed to exhaust "their available and adequate administrative remedies" (App., infra, 40a). The court explained that under this Court's decision in Weinberger v. Salfi, 422 U.S. 749, 765-777 (1975), the "final decision" requirement is central to the grant of subject matter jurisdiction under 42 U.S.C. (Supp. V) 405(g) and that the Secretary must determine what constitutes a "final decision" for these purposes. Here, the court noted, the Secretary had declined to waive the exhaustion requirement because respondents' claims raised both factual and legal issues for which further administrative review would be appropriate. App., infra, 40a-41a. The district court also concluded that it could not excuse exhaustion and find jurisdiction under 42 U.S.C. (Supp. V) 405(g) on the theory that the issues respondents sought to raise are "collateral" to their substantive claims for benefits within the meaning of the exception to the exhaustion requirement recognized in Mathews v. Eldridge, 424 U.S. at 330-332. In the court's view, respondents' statutory contentions "consist of a grievance respecting the benefits due" and are "directed at upsetting the merits of the Secretary's determination," and their constitutional claims are "inextricably intertwined" with these statutory contentions (App., infra, 43a). The district court concluded that other bases of jurisdiction were foreclosed as well. It explained that the special statutory procedure for judicial review under 42 U.S.C. (Supp. V) 405(g) is "exclusive and cannot be circumvented by resort to the general jurisdiction of the district courts" under 28 U.S.C. (Supp. V) 1331 to entertain actions "seeking broad injunctive and declaratory relief" (App., infra, 44a). The "extraordinary" remedy of mandamus under 28 U.S.C. 1361 also was not available, the court concluded, because respondents "have other ample and available means by which to have their claims reviewed, such as the administrative procedures of an Administrative Law Judge hearing and an Appeals Council review, and such as judicial review pursuant to (42 U.S.C. (Supp. V) 1343 insofar as respondents sought relief against the state defendants, because those defendants' actions in administering the Social Security Act are taken "under color of federal law as mere agents of the Secretary," not under color of state law (App., infra, 45a). 3. The court of appeals reversed the district court's dismissal of the case for lack of jurisdiction and remanded for further proceedings (App., infra, 1a-34a). The court held that despite respondents' conceded failure to exhaust their administrative remedies, the district court had jurisdiction under 42 U.S.C. (Supp. V) 405(g) insofar as the action was brought against the Secretary and Commissioner of Social Security. Citing Weinberger v. Salfi, the court was of the view that "(t)here is no Section 405(g) exhaustion requirement for constitutional issues" (App., infra, 8a-9a). Moreover, the court concluded that immediate judicial review is available under 42 U.S.C. (Supp. V) 405(g) to consider a statutory issue, even though the claimant has not exhausted his administrative remedies with respect to his claim for benefits, if the Secretary has taken a "'final position'" on the particular issue (App., infra, 8a-9a, quoting Liberty Alliance of the Blind v. Califano, 568 F.2d 333, 345-346 (3rd Cir. 1977)). Here, the court of appeals observed, respondents presented both constitutional and statutory issues with respect to which the Secretary allegedly had taken "fixed" or "final" positions (App., infra, 9a). The court concluded that the latter allegation must be accepted as true for purposes of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and that respondents must be afforded an opportunity to prove at trial that the Secretary in fact has taken such "fixed" positions (App., infra, 9a-10a). In addition, the court held that the district court had mandamus jurisdiction under 28 U.S.C. 1361 to order class-wide relief against the federal defendants, notwithstanding the preclusion of review in 42 U.S.C. 405(h) (App., infra, 11a-12a.) Finally, the court of appeals found jurisdiction under 28 U.S.C. (Supp. V) 1331 insofar as the action was brought against the state defendants, even though respondents had alleged such jurisdiction only under 28 U.S.C. (Supp. V) 1343 (App., infra, 5a-7a). The court acknowledged this Court's holding in Weinberger v. Salfi that 42 U.S.C. 405(h) bars the exercise of jurisdiction under 28 U.S.C. (Supp. V) 1331, but it concluded that Salfi is "not controlling" here (App., infra, 6a). The court reasoned that 42 U.S.C. 405(h) refers only to actions "against the United States, the Secretary, or any officer or employee thereof," and therefore is not a limitation of jurisdiction over a suit against state officials in connection with the adjudication of claims arising under the Social Security Act (App., infra, 6a). /4/ REASONS FOR GRANTING THE PETITION The decision of the court of appeals is flatly inconsistent with this Court's decisions in Weinberger v. Salfi, 422 U.S. 749 (1975), and subsequent cases and squarely conflicts with the Second Circuit's jurisdictional rulings in an essentially identical case. Smith v. Schweiker, 709 F.2d 777 (1983). The court of appeals' wholesale abandonment of the statutory exhaustion requirement in this class action involving potentially scores of thousands of individuals whose claims for benefits are still pending on administrative review threatens substantially to disrupt the orderly administrative and judicial review of claims for benefits under the massive Social Security disability programs. See also Heckler v. Lopez, No. 83-6126 (9th Cir. Feb. 22, 1984), application for stay pending, No. A-707. /5/ Review therefore is plainly warranted. The Court heard argument on February 27, 1984 in Heckler v. Ringer, No. 82-1772, which arises under the Medicare title of the Social Security Act but which presents closely related questions of jurisdiction and exhaustion of administrative remedies. The Court therefore may wish to hold the petition in this case and dispose of it in light of the decision in Ringer. We will address here several additional matters pertaining to the disability programs and the decision below that are not directly raised in Ringer. 1. Immediately after 42 U.S.C. 405 was enacted in 1939, the Social Security Board promulgated regulations making clear that judicial review could be obtained under 42 U.S.C. 405(g) only after the Appeals Council had either denied review or granted review and rendered its decision. 5 Fed. Reg. 4169, 4171-4174 (1940) (adopting 20 C.F.R. 403.706(c), 403.708(g), 403.709(l) and 403.710(e). See Gov't Reply Br. 5-6, Heckler v. Ringer, No. 82-1772. Those requirements remained in effect when Congress established the disability program under Title II in 1954 and 1956 /6/ and the SSI program under Title XVI in 1972. /7/ Against the background of this longstanding administrative implementation of Section 405, Congress's explicit specification in Title II and Title XVI that judicial review of the Secretary's "final decision" or "final determination" on a claim for disability benefits would be available in the manner "provided in section 405(g)" (42 U.S.C. 421(d), 1383(c)(3)) constitutes a congressional ratification of the exhaustion requirement in the then-existing regulations and an expression of congressional intent that the same prerequisite to judicial review apply under the SSI and Title II disability programs. See Haig v. Agee, 453 U.S. 280, 297-299 (1981); Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). In addition, from 1975 to the present day, Congress repeatedly has examined the four-stage process for administrative review of disability claims (see Gov't Br. 3-6, 23-31, Heckler v. Day, No. 82-1371 (argued Dec. 5, 1983)) without altering the exhaustion requirements in the Secretary's regulations. Bob Jones University v. United States, No. 81-3 (May 24, 1983), slip op. 25. Significantly, moreover, Congress's intensive concern with these matters has been concentrated in the years following this Court's decision in Salfi, which held that a court may not excuse the exhaustion of administrative remedies required by the Secretary's regulations based on its own finding of futility (422 U.S.C. at 764-767), and also following this Court's decision in Mathews v. Eldridge, 424 U.S. 319 (1976), which reaffirmed the Salfi holding in the specific context of the termination of disability benefits and recognized only a narrow exception to the exhaustion requirement for an "entirely collateral" issue that otherwise would be effectively unreviewable and unremediable (424 U.S. at 330-332). Although Congress has amended the procedures for review of disability claims under Title II and Title XVI in a number of other respects, it has not chosen to alter the exhaustion and jurisdictional rules established by Salfi and Eldridge. For example, as a result of its continuing review, Congress extensively revised the disability programs in 1980 and 1982 to require such measures as: extensive regulation by the Secretary of the States' processing of claims for benefits, periodic continuing disability reviews under Title II, a more complete explanation of an initial denial of benefits by a state agency, /8/ mandatory review by SSA of determinations by state agencies, an opportunity for a face-to-face evidentiary hearing at the reconsideration stage of Title II disability cessation cases, temporary authorization for the payment of interim benefits in Title II disability cessation cases pending the ALJ'S decision, review of some ALJ decisions by the Appeals Council on its own motion to ensure adequate and uniform adjudication, and limitations on the remand of cases pending on judicial review under 42 U.S.C. 405(g). /9/ See pages 2-5, supra. It is simply inconceivable that Congress intended that the multi-stage process for the administrative and judicial review of disability claims that these measures were designed to strengthen could be circumvented in the manner countenanced by the court of appeals in this case. Indeed, the text of the amendments demonstrates that Congress intended no such departure. The statutory revisions in the disability programs discussed above specifically included amendments to 42 U.S.C. 405(b) and 1383(c)(1), which establish the ALJ hearing as an essential step in the review of claims for benefits; an amendment to 42 U.S.C. 405(g), which permits judicial review only of the Secretary's final decision after that hearing; and an amendment to 42 U.S.C. 421(d), which provides for administrative hearings on Title II disability claims to be conducted pursuant to 42 U.S.C. 405(b) and for judicial review to be available pursuant to 42 U.S.C. 405(g). /10/ Congress's amendment of the controlling statutory sections in other respects -- while leaving untouched those portions that on their face and as construed by this Court require full exhaustion of administrative remedies as a prerequisite to judicial review under 42 U.S.C. 405(g) -- manifests an intent to retain the latter requirements. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378-379 (1982). /11/ 2. The particular rationale of the court below for excusing exhaustion of administrative remedies as a prerequisite to jurisdiction under 42 U.S.C. (Supp. V) 405(g) warrants only a brief response. The court first held, citing Weinberger v. Salfi, that "(t)here is no Section 405(g) exhaustion requirement for constitutional issues" (App., infra, 8a-9a). But Salfi in fact stands for the opposite proposition: the Court there explicitly held that the district court could not dispense with the exhaustion requirement on the ground of futility simply because the plaintiff raised a constitutional challenge to a provision of the Social Security Act. 422 U.S. at 766-767. Contrary to the apparent view of the court of appeals (App., infra, 8a), the Court did not retreat from this holding in Mathews v. Eldridge. The Court in Eldridge simply permitted interlocutory judicial review on an issue that was "entirely collateral" to the substantive claim for benefits and that could not be adequately reviewed and remedied in subsequent proceedings. 424 U.S. at 330-332. By contrast, respondents' evidentiary contentions in this case are not even remotely "collateral" to their substantive claims for benefits; those contentions can be adequately considered on judicial review of the Secretary's "final decision" disposing of the entire claim for benefits; and any error can be adequately remedied by means of a retroactive award of benefits. See Heckler v. Lopez, No. A-145 (Sept. 9, 1983) (Rehnquist, Circuit Justice), slip op. 9; Smith v. Schweiker, 709 F.2d 777, 780-781 (2d Cir. 1983). Equally without merit is the court of appeals' conclusion that a claimant may obtain interlocutory judicial review on a statutory issue if the Secretary has taken a "final position" on that particular issue (App., infra, 8a-9a). The authorization for review of a "final decision" in 42 U.S.C. (Supp. V) 405(g), like that in 28 U.S.C. 1291, permits review only of a final judgment terminating the litigation, except in the narrow category of otherwise unreviewable "collateral" issues. Mathews v. Eldridge, 424 U.S. at 330-332. See Gov't Reply Br. at 3-5, 9-16, Heckler v. Ringer. What is more, the court of appeals held that respondents' allegations that the Secretary had taken "fixed" positions on the issues they sought to litigate must be accepted as true for purposes of ruling on the Secretary's motion to dismiss for lack of jurisdiction (App., infra, 3a-9a, 10a). The court therefore apparently contemplates a trial on remand not only on the merits of the "issues" involved, but also on the threshold question of whether the Secretary harbors "fixed" views on them. This approach is totally at odds with the statutory exhaustion requirement. When the Secretary ultimately renders her "final decision" on a claim for benefits, that decision necessarily will embody her final position, as applied to the individual claim, on any issue that plays a role in her disposition of the claim. Her decision then will be supported by an administrative record adequate for purposes of judicial review. Only in that concrete setting may a court review the Secretary's "position" on a particular "issue." 3. The court of appeals also plainly erred in finding jurisdiction over the action against the state officials under 28 U.S.C. (Supp. V) 1331, despite the bar in the third sentence of 42 U.S.C. 405(h) to the exercise of jurisdiction under Section 1331 (App., infra, 5a-7a). Although the third sentence of Section 405(h) in terms refers only to actions "against the United States, the Secretary, or any officer or employee thereof," a claimant cannot resort to a suit against state officials to circumvent the manifest congressional purpose to channel all challenges to decisions denying a claim for benefits through Section 405(g). See Ellis v. Blum, 643 F.2d 68, 76 (2d Cir. 1981). Certainly the statutory text does not warrant the recognition of such a substantial loophole. State officials act as the Secretary's agents in adjudicating claims for benefits; they perform these functions under standards prescribed by the Secretary (42 U.S.C. (Supp. V) 421(a), and their expenses are paid by federal funds (42 U.S.C. (& Supp. V) 421(e), 1383b). Compare Schweiker v. McClure, 456 U.S. 188, 190-191, 196-197 (1982). The Secretary therefore is the real party in interest in any litigation concerning claims for disability benefits; indeed, the regulations governing the States' determinations of disability expressly provide that "(t)he State agency will not be responsible for defending in court any determination made, or any procedure for making determinations, under these regulations" (20 C.F.R. 404.1615 (f)). Compare United States v. Erika, Inc., 456 U.S. 201, 205-206 n.4 (1982). Accordingly, for purposes of the third sentence of Section 405(h), the responsible state officals stand in the shoes of the federal "officer(s)" and "employee(s)" who are expressly mentioned in that sentence. Moreover, the second sentence of Section 405(h) provides that "(n)o findings of fact or decision of the Secretary shall be reviewed by any * * *tribunal * * * except as herein provided" -- i.e., except as provided in 42 U.S.C. 405(g). Under the statutory scheme, the findings and decisions of the state agency on disability claims are those of the Secretary, and in fact it is SSA, not the state agency, that formally renders the decision to the claimant after it receives and conducts any necessary review of the state agency's proposed disposition. See Mathews v. Eldridge, 424 U.S. at 338. Section 405(h) therefore applies equally to bar suits under 28 U.S.C. (Supp. V) 1331 against state officials. CONCLUSION The Court may wish to hold the petition in this case and dispose of it in light of its decision in Heckler v. Ringer, No. 82-1772, if that decision sufficiently addresses the issues presented here. In the alternative, the petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General WILLIAM KANTER NICHOLAS S. ZEPPOS Attorneys March 1984 /1/ Pub. L. No. 97-455, Section 2, 96 Stat. 2498, to be codified at 42 U.S.C. 423(g). The temporary authorization (as briefly extended by Pub. L. No. 98-118, Section 2, 97 Stat. 803) applies to any case in which the initial determination that the disability had ceased was made on or after (or was pending on administrative review on) the effective date of the Act (January 12, 1983), but before December 7, 1983. HHS may continue to pay benefits in such cases through June 1984 or until the ALJ renders his decision, whichever occurs first. /2/ "C.A. App." refers to the Appendix filed in the court of appeals. /3/ See C.A. App. 7-22, Paragraphs 22, 28, 35, 42, 46, 51, 69, 74, 80, 82, 94, 98, 104, 112, 115. An affidavit of an SSA official, which was based upon SSA'S search of the individual claimants' records and was included in a Supplemental Appendix filed in the court of appeals (Supp. C.A. App.), confirmed that these named plaintiffs had not exhausted their administrative remedies, although the files of several named plaintiffs could not be located (see Supp. C.A. App. 6 Paragraph 10, 9 Paragraph 16). One of the original named plaintiffs, Clinton Royal, had exhausted his administrative remedies and had sought judicial review in an individual action under 42 U.S.C. (Supp. V) 405(g) in the United States District Court for the Eastern District of Pennsylvania (No. 81-4747) before this class action was filed (C.A. App. 14 Paragraph 59). Final judgment in Royal's individual action was entered in favor of the Secretary on March 31, 1983, and no appeal was taken from that judgment. The decision terminating his benefits therefore became final and binding upon him. 42 U.S.C. 405(h). Although Royal was a named party in the court of appeals in this class action as well and therefore is a named respondent before this Court, he cannot be considered still to be an active member of the respondent class, much less a suitable class representative. /4/ Judge Becker issued a separate concurring opinion (App., infra, 14a-34a). Judge Becker concluded that jurisdiction over the action against the state defendants under 28 U.S.C. (Supp. V) 1331 was barred by 42 U.S.C. 405(h) because they are mere agents or alter egos of the Secretary in administering the Social Security disability programs (App., infra, 14a-16a), but he found that the district court could exercise mandamus jurisdiction against the state defendants under 28 U.S.C. 1361 (App., infra, 27a-34a). Judge Becker agreed with the majority that the district court had jurisdiction over the action against the federal defendants under 42 U.S.C. (Supp. V) 405(g) in the particular circumstances of this case (App., infra, 16a-27a), despite what he characterized as the Secretary's "forceful arguments" that respondents' contentions "are inextricably intertwined with the merits of each disability-benefits termination decision" and thus are not collateral to their claims for benefits (id. at 22a-23a (footnote omitted)). /5/ See also Mental Health Ass'n of Minnesota v. Heckler, 720 F.2d 965 (8th Cir. 1983); City of New York v. Heckler, Civ. No. CV-83-0457 (E.D.N.Y. Jan. 1, 1984), appeal pending, No. 84-6037 (2d Cir.); Trujillo v. Heckler, Civil No. 82-k-1505 (D. Colo. Dec. 15, 1983), appeal pending, Nos. 83-2413 & 84-1181 (10th Cir.); Hyatt v. Heckler, No. C-C-83-655-17 (W.D.N.C. Feb. 14, 1984); Doe v. Heckler, Civ. No. M-83-2218 (D. Md. Dec 13, 1983), appeal pending, No. 84-1202 (4th Cir.); Graham v. Heckler, 573 F. Supp. 1573 (N.D.W.Va 1983). /6/ Social Security Amendments of 1954, ch. 1206, Section 106, 68 Stat. 1079; Social Security Amendments of 1956, ch. 836, Section 103, 70 Stat. 815. See 20 C.F.R. 403.706(c), 403.708 (g), 403.709(l) and 403.710(e) (1954 & 1956). /7/ Social Security Amendments of 1972, Pub. L. No. 92-603, Tit. III, 86 Stat. 1465 et seq. See 20 C.F.R. 404.908, 404.916, 404.940, 404.951 (1972). /8/ See the second sentence of 42 U.S.C. (Supp. V) 405(b) and 1383(c)(1). /9/ U.S.C. (Supp. V) 405(g), as amended by Section 307 of the Social Security Disability Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 458. /10/ See Sections 304(d), 305 and 307 of the Social Security Disability Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 456, 457 and 458; Pub. L. No. 97-455, Section 4, 96 Stat. 2499, to be codified at 42 U.S.C. 405(b)(2). /11/ Moreover, under the SSI program, an individual's disability benefits are not terminated until after he has had an ALJ hearing and the ALJ renders a decision that his disability has ceased. See page 4, supra. All that remains at that point is the requirement that the claimant seek review by the Appeals Council prior to filing an action under 42 U.S.C. (Supp. V) 405(g). This would not ordinarily be a time-consuming step. There is no permanent authorization under Title II for the payment of interim benefits pending the ALJ'S decision. But Congress in the past has enacted temporary legislation providing for the payment of such benefits (see page 4, supra), and in doing so has demonstrated how it believes any problems resulting from delay in exhaustion of administrative remedies should be addressed. Congress has not authorized a circumvention of these remedies, as the court of appeals has done. APPENDIX