The decision is an important victory for the estimated 3,000,000 participants in Social Security programs who are blind or have low vision, the overwhelming majority of whom are over the age of 80.
A district court in California has denied jurisdictional and substantive motions to dismiss an action against the Social Security Administration (SSA) which seeks to compel the agency to provide notices and other communications in accessible formats for program participants with visual impairments. American Council of the Blind, et al v. Astrue, 2008 WL 1858928 (N.D. Cal. April 23, 2008). See NSCLC Washington Weekly, Nov. 18, 2005. The decision is an important victory for the estimated 3,000,000 participants in Social Security programs who are blind or have low vision, the overwhelming majority of whom are over the age of 80. It provides considerable cause for optimism that SSA will be required to change its current practice of providing the same standard print format for notices to people with visual impairments that it provides to everyone else. Plaintiffs, in challenging SSA’s policy, are seeking to represent a class of all visually impaired beneficiaries of and applicants for Social Security, Supplemental Security Income (SSI), Special Veterans Benefits, and Medicare, as well as representative payees in those programs who have visual impairments.
Plaintiffs asserted federal question jurisdiction based on claims under § 504 of the Rehabilitation Act and the Due Process Clause. The government argued that federal question jurisdiction was precluded by 42 U.S.C. § 405(h) which bars federal question jurisdiction in cases “arising under” the Social Security Act and stipulates that they can only be brought under 42 U.S.C. § 405(g) and then only if plaintiffs exhaust all 405(g) administrative remedies. The catch here is that 405(g) administrative remedies are restricted to claims for benefits and plaintiffs claims were not claims for benefits and thus the administrative remedies were not available. Indeed two of the plaintiffs had been instructed by SSA to pursue their administrative claims under the Rehabilitation Act and not under 405(g).
The court, William Alsup, U.S.D.J., ruled that the case did not arise under the Social Security Act since “The Rehabilitation Act, not the Social Security Act, establishes the basis for plaintiffs’ discrimination claims because the Rehabilitation Act creates the duty on the part of the agency to provide meaningful access to participants.” The court also noted that applying 405(h) “risks depriving plaintiffs of any judicial review” and that the case therefore falls under the exception to 405(h) established by the Supreme Court in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986) for cases in which applying 405(h) would result in no judicial review at all.
The government also argued that, even if 405(h) did not bar federal question jurisdiction, that § 504 of the Rehabilitation Act did not authorize a private right of action and that plaintiffs should therefore pursue their remedies under the Administrative Procedure Act. Although the Ninth Circuit had held in J.L. v. Social Security Administration, 971 F.2d 260 (9th Cir. 1992) that § 504 did create a private right of action, the government contended that J.L. had been overruled by Lane v. Pena, 518 U.S. 187 (1996). However, Judge Alsup, following an earlier district court decision in Mendez v. Gearan, 947 F. Supp. 1364, 1368 (N.D. Cal. 1996), concluded that, while Lane v. Pena makes it clear that § 504 does not create a claim for money damages against a federal agency, J.L. is still binding authority with respect to claims for equitable relief.
Ever determined to avoid having to provide meaningful access for people with visual impairments, SSA then pulled out its trump card. They asserted that special notice statutes passed by Congress almost 20 years ago and which SSA had managed to ignore until after this action was filed, constitute a “legislative declaration” of the agency’s total responsibility under the Rehabilitation Act. The statutes in question, 42 U.S.C. §§ 421(l) & 1383(l), apply only to the small percentage of blind participants in SSA programs who receive or apply for benefits on the basis of blindness. They provide that an individual is entitled, at his or her election, (1) to receive supplementary notice of any decision or determination by follow-up phone call within 5 days, or (2) to receive notice by certified mail, or (3) to receive notification by some alternative procedure “established by the Commissioner of Social Security and agreed to by the individual.” The court gave short shrift to this argument, noting that it did not apply to all those in need of accommodation, and described as “far-fetched” the argument that Congress intended these provisions to relieve the agency of its obligations under the Rehabilitation Act.
Plaintiffs were represented by the National Senior Citizens Law Center, Disability Rights, Education & Defense Fund, Inc., Oregon Advocacy Center and Heller, Ehrman, LLP which has committed substantial resources to the case.
It is not yet clear how the case will proceed from this point on or whether the government will seek interlocutory review from the Court of Appeals.
For further information contact Gerald McIntyre in the NSCLC Los Angeles office.