Chilicky v. Schweiker

Decision Date12 August 1986
Docket NumberNo. 84-2828,84-2828
Citation796 F.2d 1131
Parties, 14 Soc.Sec.Rep.Ser. 267, Unempl.Ins.Rep. CCH 16,917 James CHILICKY, Dora Adelerte, and Spencer Harris, Plaintiffs-Appellants, v. Richard SCHWEIKER, former Secretary of Health and Human Services; John Svahn, former Commissioner of the Social Security Administration; and William R. Sims, Director of the Arizona Disability Determination Service, in their individual capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

William E. Morris, Southern Ariz. Legal Aid, Inc., Tucson, Ariz., for plaintiffs-appellants.

Barbara L. Herwig, Howard S. Scher, Dept. of Justice, Civil Div./Appellate Staff, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, SNEED, and HUG, Circuit Judges.

HUG, Circuit Judge:

This case concerns the personal liability of certain state and federal officials and their immunity from damages arising from their alleged violations of citizens' constitutional rights. Appellants, whose Old Age, Survivors and Disability Insurance ("OASDI") and/or Supplemental Security Income ("SSI") disability benefits had been terminated during disability reviews in 1981, appeal the dismissal of their claims that appellees, the Secretary of Health and Human Services, the Commissioner of the Social Security Administration, and the Arizona state official who administered these disability benefits programs, unconstitutionally violated their rights under the Fifth Amendment in terminating appellants' benefits.

Appellants received disability benefits under Title II of the Social Security Act, 42 U.S.C. Sec. 401 et seq. (1982), or under the Supplemental Security Income program, 42 U.S.C. Sec. 1381 et seq. (1982). In 1980, Congress established, effective January 1, 1982, a continuing disability review ("CDR") process to insure that only those individuals whose medical conditions still warranted disability status received payment; however, the Secretary of Health and Human Services (the "Secretary" and "HHS," respectively) implemented the CDR process in March 1981. Appellants' disability benefits were terminated by the CDR process; however, they were ultimately reinstated, either through the administrative appeals process or under the provisions of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794.

On August 20, 1982, appellants James Chilicky, Spencer Harris, and Doris Adelerte, together with seven other similarly situated persons, filed suit against Richard Schweiker, then HHS Secretary, John Svahn, Social Security Commissioner, and William R. Sims, Arizona Director of Disability Determinations. 1 The complaint asserted that the appellees ordered, sanctioned, or implemented numerous practices, in violation of federal law and the Fifth Amendment, in administering the CDR process, which culminated in the termination of appellants' benefits. The appellants alleged, inter alia, that the appellees: (1) improperly accelerated the starting date of the CDR process from the statutory effective date of January 1982 to the earlier date of March 1, 1981; (2) illegally nonacquiesced in the law of this circuit; (3) failed to apply any uniform written standards in implementing the CDR process; (4) failed to render decisions consistent with allegedly dispositive evidence; and (5) used an impermissible "quota system" under which state agencies were required to terminate a certain number of recipients. 2 On November 15, 1982, prior to submission of an answer, appellees filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), asserting, inter alia, a lack of both subject matter jurisdiction and personal jurisdiction for insufficiency of service of process.

On July 15, 1983, the district court stayed the proceedings pending disposition of Lopez v. Heckler. See Lopez v. Heckler, 725 F.2d 1489, 1493-96 (9th Cir.1984) (detailing procedural history), vacated and remanded, --- U.S. ----, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). The district court vacated the stay on April 6, 1984.

Because of the Lopez decision and actions taken by HHS prior to, and as a result of, the 1984 Disability Benefits Reform Act, appellants withdrew their requests for class certification and for declaratory and injunctive relief. Thus, the only claim remaining was their claim for money damages against appellees in their individual capacities for due process violations in implementing the CDR process. Appellants' surviving claim is predicated on the constitutional tort theory of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). On October 16, 1984, the district court dismissed the claim, ruling as a matter of law that all appellees were insulated from liability under the doctrine of qualified immunity. The district court found that the acceleration of the CDR process, the problems encountered at the state level, and the standards utilized in the review process, including the purported nonacquiescence policy of the Secretary in decisions of the Ninth Circuit, were not violations of clearly established statutory or constitutional rights of which a reasonable person should have known.

DISCUSSION
A. Jurisdiction
1. Subject Matter

Appellees argue that the district court lacks subject matter jurisdiction of appellants' constitutional tort cause of action. Their argument is predicated on the assumption that appellants' action "arises under" the Social Security Disability Act; thus, appellees contend, section 405(h), 42 U.S.C. Sec. 405(h) (1982), precludes appellants' lawsuit. We disagree.

Section 405(g), 42 U.S.C. Sec. 405(g) (1982) provides that "[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review of such decision by a civil action ... brought in the district court of the United States ...." and that the "court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary ...."

Section 405(h) states:

The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under [Title II of the Social Security Disability Act].

We agree with appellees that appellants' claim for money damages may not be raised under section 405(g); that section does not expressly grant the district court the power to award money damages to remedy the emotional distress caused by erroneous administrative decisions or processes. Rather, the only remedy available under section 405(g) is the retroactive payment of disability benefits that were wrongfully terminated. Appellants have already had their benefits retroactively restored by the Secretary; they now seek further compensation by instituting a lawsuit for money damages. Section 405(g) affords no such relief.

We disagree, however, with appellees' contention that section 405(h) prohibits any non-section 405(g) action against the appellees from being brought under the Fifth Amendment due process clause. 3 Section 405(h) only precludes actions "arising under" Title II of the Social Security Disability Act, a section 405(g)-type action for disability benefits, from being instituted prior to exhaustion of administrative remedies. Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2021-22, 80 L.Ed.2d 622 (1984); Weinberger v. Salfi, 422 U.S. 749, 764-66, 95 S.Ct. 2457, 2466-67, 45 L.Ed.2d 522 (1975). Appellants do not pursue their remaining claim in an effort to have their disability benefits restored; this has been done. Rather, they seek damages for constitutional violations purportedly committed by appellees in terminating appellants' disability benefits. Consequently, this action does not arise under Title II of the Social Security Disability Act and is thus not barred by section 405(h). The district court has subject matter jurisdiction under 28 U.S.C. Sec. 1331 over appellants' due process claim against all appellees. Ellis v. Blum, 643 F.2d 68, 75-76 (2d Cir.1981). See also Kuehner v. Schweiker, 717 F.2d 813, 816-17, 819 (3d Cir.1983), vacated and remanded on other grounds, --- U.S. ----, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984); Ostroff v. State of Florida Dept. of Health and Rehabilitation Services, 554 F.Supp. 347, 354 (M.D.Fla.1983) (federal defendants).

2. Personal Jurisdiction

Although not expressly decided by the district court, Schweiker and Svahn contend that venue in the District Court of Arizona was improper and that the district court lacked personal jurisdiction over them because (1) the issuance of service of process was unauthorized and, thus, defective; and (2) there were not sufficient minimum contacts between the federal defendants and the State of Arizona necessary to satisfy the requirements of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), and the Arizona long-arm statute. 4 Appellants argue that the district court did have personal jurisdiction over Schweiker and Svahn in their individual capacities, but that even if service of process was insufficient, personal jurisdiction under the Arizona long-arm statute was lacking, and venue was improper, these appellees waived their objections under Fed.R.Civ.P. 12(g) and (h).

Fed.R.Civ.P. 12, and specifically subdivisions (g) and (h), promote the early and simultaneous presentation and determination of preliminary defenses. Rule 12(g) requires that a party who raises a defense by motion...

To continue reading

Request your trial
42 cases
  • Schowengerdt v. General Dynamics Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 30, 1987
    ...are, in reality, suits against the United States and as such are barred by the doctrine of sovereign immunity. Chilicky v. Schweiker, 796 F.2d 1131, 1137 n. 7 (9th Cir.1986); Gilbert v. DaGrossa, 756 F.2d 1455, 1458-59 (9th Cir.1985). The major thrust of Schowengerdt's claim, however, is th......
  • Nichols v. Block
    • United States
    • U.S. District Court — District of Montana
    • March 5, 1987
    ...the law at the time of the alleged unlawful and unconstitutional activity clearly prohibited such conduct. See, Chilicky v. Schweiker, 796 F.2d 1131, 1137 (9th Cir.1986). In the case at bar, the Nichols seek to impose civil liability upon both the individually named FmHA officials and the U......
  • Fac, Inc. v. Cooperativa De Seguros De Vida
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 28, 2000
    ...therefore did not "arise under" the Medicare Act within the meaning of section 405(h). See id. at 501; see also Chilicky v.. Schweiker, 796 F.2d 1131, 1135 (9th Cir.1986), rev'd on other grounds, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (constitutional tort claims against state ......
  • Schweiker v. Chilicky
    • United States
    • U.S. Supreme Court
    • June 24, 1988
    ...against individual rights, and Congress has discharged that responsibility to the extent that it affects this case. Pp. 424-429. 796 F.2d 1131 (CA 9 1986), O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and in all but......
  • Request a trial to view additional results
1 books & journal articles
  • Federal-state Programs and State-or Is it Federal?-action
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 54, 2022
    • Invalid date
    ...law can be sued for any resulting damages. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); see also Chilicky v. Schweiker, 796 F.2d 1131, 1135 n.3 (9th Cir. 1986) (holding that a state official had acted under color of federal authority in terminating or threatening to terminate di......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT