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CONGRESSIONAL RECORD SENATE

25976
people
on the

who have

every right to remain

rolls.

Reaching this consensus has been a


long and difficult process a^ we endeavored to find ways to protect the
interests of the disabled without promoting runaway growth in the disability insurance program. All of us would
like to have been able to reach a
speedier resolution, but that was not
possible.

The problems were complex

and without obvious solutions. Also


views varied widely on the best course
of action. Fortunately, these were not
partisan differences and most of these
differences have been resolved, or at
least accommodated, in the pending
conference report.
To achieve this consensus, concessions were required on the part of

both the House and Senate; on net, I


believe, the product is a good compromise. In the area of medical improvement, the conference report contains a
middle position between the House
and Senate bills, with the standard of

review in the House bill being clarified


and made more workable, the Senate
effective date expanded to ensure that
people in already certified class actions lare covered by the new standard,
and me burden of proof requirements
in the Senate bill which created some
real confusion are careJPGIlsrlald^out
and explained in th^statement of
managers. The Senate receded on its
position of sunsetting the medical improvement standards and including a
financing fail-safe. On the other hand,
the Senate position generally prevailed in the area of the evaluation of
pain and multiple impairments. The
House receded on its provision to require the Secretary to adopt as agency
policy th'ose U.S. Court of Appeals decisions which conflict with her interpretation of Federal law. Each of the
agreements are summarized at the end
of this statement.
This legislation is not perfect, of
course. But in my view, this is a good
'compromise that balances the various
interests. The basic eligibility criteria
for disability benefits have been clarified and made more explicit. This

should allow the reviews, which were


suspended by the administration last
spring, to be resumed in an orderly
way and conducted on a uniform, nationwide basis.

There have been nearly an equal


of Senators on both sides of
the aisle who have had a deep interest
in this legislation, and many people

number

who

are to be

commended

for their

development of this legislation. The Senate conferees Senators


Packwood, Roth, Danforth, Long,
Bentsen, and Moynihan and other of
my
colleaguesSenators
Cohen,
Heinz, Levin, Durenberger, and MetzENBAUM, RiEGLE, Sasser, and Helms, to^
name a few have worked diligently to
role in the

help

resolve

this

difficult

issue.

might add that Senator Helms,

intro-

duced one of the first pieces of legislation on this issue.


Of course, I would be remiss without
extending my thanks to a distinguished Member of Congress from
Texas, Congressman Pickle, chairman
of the Social Security Subcommittee,
who has done an outstanding job and
provided a great deal of leadership in
this area.

Even before you th&nk other Members you ought to thank the staff. We
have had staff working on these problems on both sides of the aisle for

months. I do not know how many


meetings Carolyn Weaver has conducted along with Mike Stern and Joe
Humphreys of Senator Long's staff,
but there have been many. They had
only one purpose in mind, that was to
find an objective answer to some of
the difficult problems we have seen in
the disability insurance program in
the past few years.
I want to thank the staff for all
their efforts. Certainly, many people
who may never know about how the
changes were made will be indebted to
the staff who gave a lot of their time

and a

lot of their talent to bring this


matter to fruition.
Finally, I'd like to note the support

we have received from the administration in helping to develop this compromise agreement. I commend Secretary
Heckler, Secretary of HHS; the Justice
Department; OMB; and the other Federal agencies that have been working
with us over the past few years.
In my view, the Reagan administration has been very forthcoming. As I
mentioned earlier, this law vvas passed
in the Carter administration. The responsibility for conducting the reviews
fell to the Reagan administration. I
cannot seem to get that straight for
Spencer Rich, the Washington Post,
and the New York Times, but sooner
or later they will get it right. If they
do report the facts, they will report
that the review bill was passed in 1980
and Ronald Reagan was not the President in 1980. Today, the Congress is
acting to revise the 1980 law.
In closing, I urge my colleagues to
support the conference report on H.R.
3755. It is a good, solid piece of legislation that ought to have unanimous

support.
Mr. President, I have attached a
summary of the conference agreement
at the end of my statement. There are
several points I would like to clarify

about this agreement;


First, the conference report does not
contain the express provision contained in the Senate bill that the
burden of proof in the medical improvement standard rests with the recipient and not the Secretary. I want
to make it clear that the recipient continues to bear the burden of proof in
establishing the existence of his disability, just as is the case for people
applying for benefits. The Senate lan-

September

19,

1984

guage on burden of proof was eliminated because it was seen as unnecessary and potentially confusing. The
conference report also changes the
language of the "no presumption" in
the Senate bill to make it clearer that
we do not intend for the Secretary or
the courts to draw any initial inference of the presence or absence of continuing disability from the fact that
the recipient was found to be under a
disability in a prior determination.
I would like to note that the Supreme Court held in Matthews versus
Eldridge that the burden of proof lies
with the recipient.
Second, the conference report eliminates portions of the language in the
effective date of the Senate bill relating to the time limits, exhaustion requirements, and other provisions of
section 205 of the Social Security Act
and regulations of the Secretary.
These provisions are critical to the orderly administration of the program,
and nothing in this legislation should
be interpreted as detracting from their
broad applicability. The effective date
provision does, however, permit all
class members of certified class actions
to seek review of their cases under the
medical improvement standard establishment by this act, even where they
may not have pursued their' appeal
rights in accordance with section 205

and the Secretary's regulations. This


is intended to help resolve the existing
controversy over the medical improvement issue in the courts and is justified on the grounds that many class

members

of certified class actions

may

have formed reasonable expectations


from the fact of certification that they
would receive further review of their
cases. Accordingly, the bill gives

them

the opportunity to receive such further review. But this should in no way
be interpreted as a judgment by the
conferees that these individuals have
claims properly pending in court or
that these classes were properly certified. The conference bill's treatment
of these cases should be given no
broader reading, and certainly should
not be used as a precedent.
Third, the Senate bill expressly provides that the medical improvement
standard established by the bill does
not apply to unnamed putative members of uncertified class actions, and
that such individuals, to the extent
they have not individually sought judicial or further administrative review
of their cases, will not have any further administrative review of the determination of the Secretary. The
House bill is silent on the matter. The
conferees, after carefully considering
this matter, have concluded that the
best approach is to prohibit any further certifications of class actions that
raise the issue of whether a medical

improvement standard should have


been applied to individuals terminated

September
from the
of

this

19,

CONGRESSIONAL RECORD SENATE

1984

rolls prior to the


legislation. This

which more

directly

enactment

approach,
addresses the

arise
constitutional questions
only in the context of litigation to which
the government is a party. Because of those
Washington, DC. May 7, 1984.
facts the government Is more likely than
Hon. Robert Dole,
Involved In lawsuits
Chairman, Senate Finance Committee, U.S. any private party to be
parties which nonetheless
different
against
DC.
Washington,
Senate,
Dear Chairman Dole: I am writing to ex- involve the same legal issues.
A rule allowing nonmutual collateral espress the Department of Justice's strong opgovernment in such cases
position to the provision In Section 234 of toppel against the
the development
H.R. 3755 requiring the Social Security Ad- could substantially thwart
law by freezing
ministration (SSA) to follow adverse court of important questions of
rendered on a pardecision
payments
the^^ftrgfflnal
calculating
In
decisions
appeals
of
ticular legal issue. Allowing only one final
to beneficiaries who were not parties to the
this Court of the
adverse decisions but whose cases would adjudication would deprive
benefit it receives from permitting several
arise within the jurisdiction of that court of
courts of appeals to explore a difficult ques-*
appeals. The Department of Justice previcertiorari.
ously commented on this proposal in a tion before this Court grknts
were routineand
estoppel
nonmutual
1983.
30.
September
if
Indeed,
dated
you
to
letter
Atly applied against the government, this
in testimony given by Deputy Assistant

*
Departmemt of Justice.
*
Office of the Solicitor General.
U.S.

many

nature of the problem this legislation


seeks to correct, is designed to accomplish the same result as the related
provision in the Senate bill. AccordingFily, the rationale set forth in the
nance Committee report for why such
determinations will not be reviewed
under the medical improvement standard, directly applies to the provision
agreed to by the conferees. The
Senate report gives four reasons for
this approach: First, because of the
highly speculative nature of class certification, putative members of an untorney General Carolyn B. Kuhl on January
certified class action imlike members
arguments
25. 1984. I will not repeat the
reaof a certified class action have no
in those statements. However. I wish
raised
sonable expectation of obtaining judi- to reemphasize our serious objection to this
cial review of their determinations by
provision.
way of the class action; second, these
This provision represents an unprecedentputative class members have already ed Interference with the ability of the Jusdecided not to pursue their appeal tice Department to determine the cases it
bill would
remedies under the act, and therefore will appeal. In practical terms the
consider seeking
to
Department
the
require
under
position
are left in the same
Supreme Court review of the first adverse
this provision; third, the number of
decision on a point in any court of appeals.
to
remanded
people which might be
This will significantly restrict the prerogathe Secretary were these individuals to tive of the executive to decide which cases
be treated similarly to members of cer- should be appealed and. by forcing the govtified class actions is literally unknowernment to take more cases to the Supreme
able since these actions have not yet Court, will increase the Supreme Court's albeen certified, presenting serious ad- ready heavy workload. (Of course, the most
Supreme Court will
verse consequences for the orderly ad- likely result is that the
these cases, because
of
most
hear
to
refuse
well
as
as
program
ministration of the
of statutory
it rarely grants review on issues
its ultimate cost; and fourth, there is a
construction absent a conflict among the
acrimonious
the
end
to
pressing need
circuit courts.) Moreover, the bill's conselitigation that has engulfed this pro- quences may spill over to unrelated ar/as of
gram. I might add that the Congress government litigation since its intent aphas the power to prohibit such certifi- pears to be to require the government to
cations since it is by way of the Feder- urge the Supreme Court to hear more
Social Security cases at the expense of
al Rules of Civil Procedure, which
have cases meriting SuCongress has the option to amend, other programs that There also would be
review.
Court
preme
certibe
would
that these class actions
practical problems in administerfied.

Fourth, the conference report has


deleted both the House and Senate
provisions regarding nonacquiescence
by the Secretary with certain U.S.
Court of Appeals interpretations of
the Social Security Act. While some of
the conferees have expressed strong
reservations regarding this practice, it
should be made clear for the record
that it is not the position of the
Senate that the practice is unconstitutional as exercised by the Department

Human

Services or as
In this
agency.
Federal
other
by any
regard, I would like to make a part of
the Record a letter by the Solicitor
General of the United States stating
that nonacquiescence is constitutionally proper, and that a prohibition of
nonacquiescence would have serious
adverse implications for the Government's litigation in the Social Security

of Health

and

25977
can

Mr. President, I ask unanimous consent that the Solicitor General's letter
be printed in the Record along with
the summary of the conference report.
There being no objection, the material was ordered to be printed in the
Record, as follows:

significant
ing the provision, because it often is difficult to ascertain the precise scope of a particular appellate decision until subsequent
cases arise on somewhat different facts and
a court is asked to distinguish prior precedent. Finally, the provision would have the
effect of rigidly freezing the law in a particular circuit and thereby foreclosing the
Secretary from asking an appellate court to
reconsider the particular holding in light of

experience or changed circumstances, including contrary holdings by other courts of


appeals.

'

great
discretion to choose the cases it will appeal.
As^he Supreme Court recently recognized
82-849
in funited States v. Mendoza, No.
(Jan. 10. 1984). the Government is not in a
position identical to that of a private litigant" (at p. 5). In that case a unanimous Su-

The government must be accorded

preme Court decided that the government


could not be foreclosed from relitigating a
legal issue it had previously litigated unsuc-

cessfully in another action against a different party, even within the same judicial cirmany of
cuit. The Court's decision rested on
the same considerations we have relied on in
objecting to Section 234 of H.R. 3755. The
Court observed (at p. 6: emphasis added):

frequently inquestions of substantial public


Indeed, because the proscripUnited States Constitution are
directed at governmental action

Government
volves legal

Importance;
tions of the
so generally

litigation

'

Court would have to revise iu practice of

waiting for a conflict to develop before


granting the government's petitions for certiorari."

strong policy reasons counsel


a departure by Congress from what
the Supreme Court has recognized as the established principle that. 'the United States,
like other parties. Is entitled to adhere to
what it believes to be the correct Interpretation of a statute, and to reap the benefiU of
that adherence if it proves to be correct,
except Where bound to the contrary by a
UniUd
final judgment in a particular case.
StaUs v. Estate of Donnelly, 397 U.S. 286.
294-295 (1970). That is especially so In the ^
massive Social Security disability program,
because Congress by statute has directed
the Secretary 'to assure effective and uni- >
form administration of the disability insurance program throughout the United
States." 42 U.S.C. (Supp. V) 421(a)(2).
Indeed, although Section 234 of H.R. 3755
undoubtedly is motivated by considerations
of fairness, the provision actually is quite
unfair to the litigating interests of the
United States. It would, in effect, make
every case a circuit-wide class action, contrary to Rule 23 of the Federal Rules of
Civil Procedure, whenever the government
loses a Social Security case in a court of appealsbut not when it wins one.
In sum. Section 234 of H.R. 3755 has serious adverse implications for the conduct of
the governments litigation in the Social Security context. At the same time, we recognize that SSAs decision not to acquiesce in
a particular decision has on occasion led to
results that might be perceived as inequitareble. There are. however, far less drastic
sponses to this perceived problem, such as
the provision in the Levin-Cohen bill that
would require the Secretary to publish a
notice in the Federal Register and to notify
Congress whenever she does not intend to

gius.

aeftikst

"

acquiesce in a particular appellate decision.


In these circumstances, we urge that no legthe
islation be ad.opted that would damage
conduct of the defense of government programs and policies and would provide an exceptionally troublesome precedent.

Very truly yours.

Rex

E. Lee.

SolicitouGeneral.

Summary of Conference Agreement on

H.R. 3755. THE Social Security Disability Benefits Reform Act of 1984

Medical Improvement Standard


Establishes a medical improvement standard under which the Secretary may terminate disability benefits on the basis tliat he
person is no longer disabled only if
I.

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