Hi 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 Security
Administration, in which he finds that agency's failure to provide
notices
to blind and visually impaired beneficiaries, as well as representative
payees, to be a violation of Section 504 of the Rehabilitation Act.
This
is
a 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
share
the 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
copies
of the decision in its entirety in Word and Daisy formats, as well as
the
original 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, ALICE
MARJORIE 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
his
official capacity, and SOCIAL SECURITY ADMINISTRATION, Defendants.
No. C 05-04696 WHA
JUDGMENT
For the reasons stated in the accompanying order, FINAL JUDGMENT IS
HEREBY
ENTERED 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
certified
classes and the named plaintiffs with respect to the due process claim.
No
damages 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 ordinarily
consider remanding the issue of systematic relief to the agency so that
it
could pursue system-wide rulemaking in the first instance. The
litigation
posture taken by SSA herein militates decidedly against this approach,
however. Back in 2008, after an order ruled against SSA on whether
Section
504 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 the
Rehabilitation Act, decide the issue of class certification, and
determine
the 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 the
merits made herein. This course would require that the agency concede
the
correctness 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)
and
stay 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
and
Section 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 even
acknowledge that it was obligated to follow Section 504, routinely
denying
individual 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
recipients
and authorized persons shown in its records to be blind or visually
impaired:
(a) advising of the availability of the foregoing new alternatives and
giving them an opportunity to elect one of the two above alternatives
with
an 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
entitled
to ask defendants to provide any other alternative accommodation
preferred
by said individual. The notice shall describe the Section 85.51
procedure
and 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 notice
described above when such individuals call in, email in, or write in,
all
to
be effective by APRIL 15, 2010. The Court realizes that there will be
some
blind and visually impaired recipients whose impairment will not be
noted
in
the records and thus those individuals will not receive the mailed
notice
required 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 the
incremental financial burden. The American Council of the Blind is
hereby
requested 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 of
notice, and its specific plan of dissemination. It shall also spell out
a
systematic 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
and
manner of dissemination. Any objection must be filed by DECEMBER 18,
2009,
and any response thereto by DECEMBER 29, 2009. A hearing shall be held
if
needed.
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 notice
prescribed above and the method of notice, if any, selected by said
person
was followed.
7. The Court will retain jurisdiction to enforce this order, including
to
monitor 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
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