----- Original Message ----- From: "ccassandra jessie" <cjessie@xxxxxxxxxxx>
To: "Charles Atkins" <catkins@xxxxxxx> Sent: Wednesday, October 21, 2009 7:01 PM Subject: Fw: [fcb-l] COURT RULING IN ACB VS SSA
-- Cassandra "Courage is what it takes to stand up and speak. Courage is also what it takes to sit down and listen. --Winston Churchill----- Original Message ----- From: "sheila" <sayoung125@xxxxxxx>To: <fcb-l@xxxxxxx> Sent: Wednesday, October 21, 2009 6:48 PM Subject: Re: [fcb-l] COURT RULING IN ACB VS SSAI can relate, as I just received this 9 page form that I am supposed to fill out to prove that as a working person I still qualify for my benefits. Howdo they propose I do this? Sheila----- Original Message ----- From: "Jay Bader" <badddman@xxxxxxxxxxxxx>To: "FCB E-mail Discussion List" <fcb-l@xxxxxxx> Sent: Wednesday, October 21, 2009 6:20 PM Subject: [fcb-l] COURT RULING IN ACB VS SSAHi all. Please read the following message from ACB Executive Director Melanie Brunson. Thanks. Jay -----Original Message----- Date: Wed, 21 Oct 2009 13:24:12 -0400 From: "Melanie Brunson" <mbrunson@xxxxxxx> Subject: [announce] Court ruling in ACB V. SSA Hello all. As many have already heard, we received word late yesterday that Judge Alsup has issued an order in our case against the Social SecurityAdministration, in which he finds that agency's failure to provide noticesto blind and visually impaired beneficiaries, as well as representativepayees, to be a violation of Section 504 of the Rehabilitation Act. Thisisa major victory of ACB, the individual class members, and the lawyers who helped us present our case. Because these lists do not allow me to sharethe entire text of the court's decision here, I will paste some key portions below. I will include the actual order, and the portion of the Findings of Fact and Law which outlines the relief granted by the court. I have copiesof the decision in its entirety in Word and Daisy formats, as well as theoriginal pdf document that we obtained from the court. Please feel free to contact the office if you would like one. We will also put them on the ACB website. Enjoy reading below. Melanie Brunson Begin text of order United States District Court For the Northern District of California IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AMERICAN COUNCIL OF THE BLIND, a District of Columbia non-profit corporation, SCARLETT MILES, MARVELENA QUESADA, ARLENE DOHERTY, ALICEMARJORIE DONOVAN, BILLIE JEAN KEITH, GEORGE P. SMITH, MARY ANN ALEXANDER,and LAURA M. RUSSELL on behalf of themselves and all others similarly situated, Plaintiffs, v.MICHAEL ASTRUE, Commissioner of the Social Security Administration, in hisofficial capacity, and SOCIAL SECURITY ADMINISTRATION, Defendants. No. C 05-04696 WHA JUDGMENTFor the reasons stated in the accompanying order, FINAL JUDGMENT IS HEREBYENTERED in favor of both certified classes and the named plaintiffs and against defendants with respect to the Rehabilitation Act claim. FINAL JUDGMENT IS HEREBY ENTERED in favor of defendants and against both certifiedclasses and the named plaintiffs with respect to the due process claim. Nodamages were sought in this case. Judgment is for injunctive and declaratory relief. The Court will retain jurisdiction, subject to further order, to supervise the injunctive and declaratory relief set forth in the accompanying order. IT IS SO ORDERED. Dated: October 20, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE Case3:05-cv-04696-WHA Document324 Filed10/20/09 RELIEF GRANTED With respect to the scope of relief, a district judge would ordinarilyconsider remanding the issue of systematic relief to the agency so that it could pursue system-wide rulemaking in the first instance. The litigationposture taken by SSA herein militates decidedly against this approach,however. Back in 2008, after an order ruled against SSA on whether Section504 applied to the problem at hand, the Court invited both sides to comment on which of four alternatives should be pursued (Dkt. No. 78 at 12-13): 1. Actively continue litigating this case under Section 504 of theRehabilitation Act, decide the issue of class certification, and determinethe scope of relief, if any. 2. Stay the proceedings of the case so that the agency can engage in rulemaking or pursue other agency action in light of the ruling on themerits made herein. This course would require that the agency concede thecorrectness of this ruling on the merits. The Court would maintain jurisdiction to review any rule or policy subsequently adopted.3. Remand the action to the agency for rulemaking or other agency action.This would also require that the agency concede the correctness of this ruling on the merits. This course, however, might be problematic because there seems to be no affirmative agency action forming the predicate for original subject-matter jurisdiction.4. Certify this order for interlocutory review under 28 U.S.C. 1292(b) andstay all proceedings. Both sides, including SSA, requested that the litigation continue with a decision on the merits. Having spurned the opportunity for a stay pending rulemaking, the agency has, in effect, consented to resolve the case by litigation, not rulemaking.The agency has litigated the entirety of the issues under Section 504 andSection 85.51, including the question of undue burden as to the proposed alternatives at trial. For the same reason, this order will not merely order the agency to henceforth comply with Section 85.51 (the provision allowing individuals to ask the agency for an accommodation in the form of communications). SSA has spurned that opportunity and chosen to litigate on a class-wide basis. Moreover, until this litigation was underway, the agency refused to evenacknowledge that it was obligated to follow Section 504, routinely denyingindividual requests for accommodation. In this litigation, it has been quick to find lame excuses for noncompliance but exceedingly slow to favor accommodations. To merely order the agency to comply with Section 85.51 would lead to more lame excuses with no accommodations. Since the agency has chosen to litigate this case on a class-wide basis, this order will require relief on a class-wide basis. Consequently, the following relief is ordered: 1. For all notices and other communications with blind and visually impaired and Title II and Title XVI recipients and authorized representatives, defendants shall develop and shall offer a Braille alternative and a navigable Microsoft Word CD alternative no later than APRIL 15, 2010.2. By DECEMBER 31, 2009, defendants shall provide notice to all recipientsand authorized persons shown in its records to be blind or visually impaired: (a) advising of the availability of the foregoing new alternatives andgiving them an opportunity to elect one of the two above alternatives withan effective date of APRIL 15, 2010. The notice should advise that selection of one of the two alternatives would discontinue any special notice previously selected under the special notice policy, i.e., that the recipient would not be entitled to both a SNP notice as well as a new alternative. The newest alternatives, to the extent selected, would relieve the agency of the burden of making the SNP notice and, to that extent, would be less burdensome on the agency; and (b) advising that the blind and visually impaired are individually entitledto ask defendants to provide any other alternative accommodation preferred by said individual. The notice shall describe the Section 85.51 procedureand fully comply with its duty to advise as to rights. This order is without prejudice to future relief to any individual pursuant to any such individual request pursuant to Section 85.51 and the agency is hereby ordered to comply in good faith with Section 85.51. 3. In addition to the notice required by Paragraph 2, defendants shall make an appropriate announcement on its website and shall train its staff dealing with the blind and visually impaired to communicate orally the noticedescribed above when such individuals call in, email in, or write in, alltobe effective by APRIL 15, 2010. The Court realizes that there will be some blind and visually impaired recipients whose impairment will not be notedinthe records and thus those individuals will not receive the mailed noticerequired by above. Those individuals, however, may learn of the expanded options via the website and/or through telephone communications. This order finds that more expansive dissemination of the written notice would not be worth theincremental financial burden. The American Council of the Blind is herebyrequested to give appropriate notice of the relief ordered herein to as many blind and visually impaired individuals as feasible through its website and publications. The Court finds that in due course everyone with a need to know the change will be fully informed. 4. By NOVEMBER 25, 2009, defendants shall file a specific description of the Braille and Microsoft Word CD it proposes to offer, the specific form ofnotice, and its specific plan of dissemination. It shall also spell out asystematic plan for receiving and ruling on requests for accommodation under Section 85.51. By DECEMBER 4, 2009, both sides shall meet-and-confer in person on the adequacy of the proposal as well as on the form of notice andmanner of dissemination. Any objection must be filed by DECEMBER 18, 2009, and any response thereto by DECEMBER 29, 2009. A hearing shall be held ifneeded. 5. By APRIL 16, 2010, defendants must file a certificate of compliance under oath stating in detail what was done to comply with this order. 6. After APRIL 16, 2010, no social security benefits may be reduced or terminated to any individual shown in the SSA records to be blind or visually impaired (or whose authorized payee is shown to be blind or visually impaired) unless such person was first provided with the noticeprescribed above and the method of notice, if any, selected by said personwas followed.7. The Court will retain jurisdiction to enforce this order, including tomonitor whether it is complying with its duties under Section 85.51. IT IS SO ORDERED. Dated: October 20, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE Melanie Brunson Executive Director American Council of the Blind 2200 Wilson Blvd. Suite 650 Arlington, VA 22201 Ph. (202) 467-5081, (800) 424-8666 Fax: (703) 465-5085 mbrunson@xxxxxxx _______________________________________________ fcb-l mailing list fcb-l@xxxxxxx http://www.acb.org/mailman/listinfo/fcb-l_______________________________________________ fcb-l mailing list fcb-l@xxxxxxx http://www.acb.org/mailman/listinfo/fcb-l-------------------------------------------------------------------------------- No virus found in this incoming message. Checked by AVG - www.avg.comVersion: 8.5.423 / Virus Database: 270.14.25/2450 - Release Date: 10/21/09 16:44:00
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