Broz v. Heckler, s. 81-7140
| Decision Date | 08 December 1983 |
| Docket Number | 81-7336,81-7370 and 81-7466,81-7143,Nos. 81-7140,s. 81-7140 |
| Citation | 721 F.2d 1297 |
| Parties | , Unempl.Ins.Rep. CCH 15,008 John BROZ, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of Health & Human Services, A Department of the United States Government, Defendant-Appellant. Richard D. HOLMES, Plaintiff-Appellee, v. Margaret M. HECKLER, The Secretary of Health and Human Services, Defendant-Appellant. Corrine LITTLE, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant-Appellant. Thomas O. JONES, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary, Department of Health & Human Services, Defendant-Appellant. Fred SOESBE, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas H. Figures, Ginny S. Granade, Asst. U.S. Attys., E.T. Rolison, Jr., Mobile, Ala., Ann Buxton Sobol, DOJ, Civil Div., Federal Programs Branch, Washington, D.C., Robert S. Greenspan, Nicholas S. Zeppos, Dept. of Justice, Appellate Staff, Civil Div., Washington, D.C., for Heckler.
Robert S. Edington, Joseph E. Carr, IV, Legal Services Corp. of Ala., Mobile, Ala., for Broz.
Steven Emens, Alabama Legal Services, Tuscaloosa, Ala., for Holmes.
Michael J. Salmon, Gulf Shores, Ala., for Little.
Daniel L. McCleave, Mobile, Ala., for Jones.
Nettles, Cox & Barker, Kenneth O. Simon, Mobile, Ala., for Soesbe.
Appeals from the United States District Court for the Southern District of Alabama.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
Before GODBOLD, Chief Judge, HENDERSON and MERRITT *, Circuit Judges.
Our decision in Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982) was vacated by the Supreme Court, --- U.S. ----, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983), and the case remanded for our reconsideration in the light of Heckler v. Campbell, --- U.S. ----, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). We reconsidered the decision and adhered to our prior decision in Broz II, 711 F.2d 957 (11th Cir.1983).
The government seeks a rehearing or rehearing en banc asserting that Broz is in conflict with four cases--Heckler v. Campbell, --- U.S. ----, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); and Watkins v. Schweiker, 667 F.2d 954 (11th Cir.1982). We find no conflict and stand by our prior ruling that in disability hearings the factor of age must be considered on a case-by-case basis. However, we recognize that some of our language in Broz I and Broz II swept too broadly, and we modify those decisions accordingly.
Campbell involved the same medical-vocational guidelines at issue here. 1 The Supreme Court explicitly stated that validity of the use of age as a vocational factor was not at issue. --- U.S. at ----, n. 8, 103 S.Ct. at 1956 n. 8, 76 L.Ed.2d at 73 n. 8. Furthermore, the Court, although not using the terms "legislative fact" and "adjudicative fact," noted that "historic facts" should be determined at a hearing but that facts "not unique to each claimant" may be determined by rulemaking. Id. at ----, 103 S.Ct. at 1958, 76 L.Ed.2d at 75. Thus, we leave in effect our prior conclusion that the Supreme Court "said nothing to call into question our application of those principles [use of the legislative/adjudicative fact distinction to determine the proper role of rulemaking under the Federal Old-Age, Survivors, and Disability Benefits section of the Social Security Act]." Broz II, 711 F.2d at 959.
In Storer Broadcasting the Supreme Court recognized that even when an agency's enabling statute required the agency to hold an individualized hearing, the agency could use its rulemaking authority to decide issues that did not require an individualized determination. 351 U.S. at 202-204, 76 S.Ct. at 770-71. Broz acknowledges the agency's authority to do rulemaking on legislative facts. The issue remains whether the effects of age on ability to adjust must be made on a case-by-case basis rather than as part of the rulemaking process.
The Eleventh Circuit upheld application of the medical-vocational guidelines to a claimant in Watkins. Presumably the claimant never raised the issue of the validity of the regulations in general or the validity of the use of age, since the court did not consider either of these issues. Watkins therefore does not conflict with Broz.
Vance v. Bradley presents the only apparent conflict with Broz. Bradley involved an equal protection challenge to a mandatory retirement age of 60 for Foreign Service personnel when employees covered by the Civil Service were not required to retire until 70. Bradley contains language indicating that the affect of age on ability to work is a legislative fact.
In an equal protection case of this type, however, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker ....
Consequently, appellees were required to demonstrate that Congress had no reasonable basis for believing ... that at age 60 or before many persons begin something of a decline in mental and physical reliability.
440 U.S. at 111, 99 S.Ct. at 949-50 (cites omitted).
Given the Court's language in Bradley, we swept too broadly in Broz I and II when we said that the effect of age could never be a legislative fact. Broz I, 677 F.2d at 1360; Broz II, 711 F.2d at 959. However, this recognition does not require reversal of our determination that in disability hearings the effect of age on an individual's ability to work should be determined on a case-by-case basis. We believe that Congress's intent in adding the language "considering age, education, and work experience" was that there should be an individualized determination of the effect of each of these factors on an individual's ability to work. Congress added this language to the statute when it adopted the Social Security Amendments of 1967, an omnibus bill with far-reaching changes in both welfare and social security laws. The redefinition of disability was only a minor part of the bill, and the specific language we are seeking to construe was only a minor aspect of that minor...
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