OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS V. CITY OF NEW YORK, ET AL. No. 84-1923 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Reply Brief For The Petitioners Respondents urge the Court to make a drastic revision of the jurisdictional principles that govern actions for judicial review under 42 U.S.C. 405(g). Section 405(g) provides that a claimant may obtain judicial review only of the Secretary's "final decision" made "after a hearing to which he was a party." Yet respondents argue that the district court had jurisdiction over the claims of thousands of individuals who never requested a hearing (despite being notified of their right to do so) and who never obtained the requisite "final decision" on their individual claims for benefits. In so arguing, respondents explicitly endorse the "case-by-case balancing test" (Br. 26) adopted by the court of appeals, which permits a court to dispense with exhaustion based on its own assessment of various factors in order to reach a "just result" under the circumstances (Pet. App. 13a). Respondents' submission not only is directly inconsistent with the language and purposes of Section 405(g) and with this Court's decisions construing that Section; it also is a totally unworkable approach to the questions of administrative finality and subject matter jurisdiction under a program in which millions of claims for benefits and thousands of actions for judicial review are filed each year. Section 405(g) further provides that an individual must commence an action for judicial review "within sixty days after the mailing to him of notice of (the Secretary's final) decision or within such further time as the Secretary may allow." Yet respondents argue that the district court properly exercised jurisdiction over the claims of individuals whose claims were denied as far back as April 1, 1980, almost three years before this suit was filed. Respondents do not suggest that the Secretary has allowed these time-barred class members additional time within which to seek judicial review (or further administrative review), pursuant to his authority in 42 U.S.C. 405(g) and implementing regulations. Nor do they suggest that any such class member ever requested that relief from the Secretary. Respondents nevertheless argue that the district court could dispense with the 60-day filing requirement because the preliminary decisions denying some of their claims may have resulted from an allegedly erroneous application of governing regulations that was contained in internal agency memoranda. Acceptance of this sweeping exception would fatally undermine the finality and repose that Congress deemed essential when it enacted the 60-day filing requirement. See Califano v. Sanders, 430 U.S. 99, 108 (1977). We have largely answered respondents' jurisdictional arguments in our opening brief. We therefore shall concentrate here on respondents' extravagant factual assertions and distortions that underlie those arguments. For despite respondents' rhetoric, nothing in the circumstances of this case suggests an occasion for the sort of radical departure from settled jurisdictional principles that they propose. A. 1. Respondents' basic premise is that the mental impairments of the claimants and the actions of the Secretary combined to prevent the unnamed class members from seeking review of the state agency's denial of their claims -- or at least should excuse their failure to do so. To the extent that respondnets argue that claimants seeking benefits on the basis of an alleged mental impairment should be categorically excused from the exhaustion and 60-day filing requirements in 42 U.S.C. 405(g), that argument must be presented to Congress, not the courts. Congress expressly provided in 42 U.S.C. 421(d) that a person who is dissatisfied with the determination by a state agency under 42 U.S.C. 421(a) that he is not "under a disability" shall be "entitled * * * to judicial review of the Secretary's final decision after (a) hearing as is provided in section 405(g) of this title." The term "disability" in turn is specifically defined to mean the inability to engage in substantial gainful activity "by reason of any medically determinable physical or mental impairment" (42 U.S.C. 423(d)(1)(A) (emphasis added). Congress thus explicitly provided that the same jurisdictional rules that apply under 42 U.S.C. 405(g) generally -- including the established exhaustion and 60-day filing requirements (see Gov't Br. 21-22) -- are to apply to claimants seeking benefits on the basis of mental disability. In any event, respondents' assertion that circumstances require a special exception to the jurisdictional rules for the unnamed class members in this case is fatally undermined by the experience of the eight named plaintiffs, all of whom alleged mental impairment and allegedly were subjected to the same actions by the Secretary of which respondents complain, but successfully negotiated the appeals process. See Gov't Br. 32-33. Seven of the eight named plaintiffs requested an ALJ hearing following the denial of their claims at the state agency level, thereby dispelling the notion that mental impairments or the Secretary's practices somehow prevented the class members from pursuing their remedies. Two of these seven were awarded benefits by the ALJ, and the other five were denied benefits for reasons unrelated to the issues in this case. /1/ This demonstrates that exhaustion was not a futile exercise and that the practices of which respondents complain were unlikely to play any role in the ultimate administrative disposition of the claims of the unnamed class members if they had sought review by an ALJ. Moreover, four of the five named plaintiffs who were denied benefits by the ALJ sought Appeals Council review and then filed their own individual actions for judicial review -- and did so within the 60-day period under 42 U.S.C. 405(g) that respondents urge this Court to disregard for the unnamed class members. /2/ There is no reason to believe that any of those class members who actually wanted to pursue their claims were categorically unable to take these same steps to preserve their rights. See also J.A. 204-206, 217, 235-236 (testimony regarding appeals by other mentally impaired claimants). 2. Perhaps because they recognize the weakness and disruptive consequences of the court of appeals' broad jurisdictional rulings, respondents attempt to justify the reopening of the thousands of abandoned claims in this case by characterizing the application of the regulations they challenged as a "secret" policy. But as we pointed out in the certiorari petition (at 26-27) and our opening brief (at 48), there was no active concealment of the guidance that certain Social Security personnel furnished to the state agency. The courts below pointed to no such evidence, and the district court made no such finding. /3/ To the contrary, the relevant documents were internal memoranda of the kind that are routine in a program of this dimension, and the various policy considerations were openly discussed within SSA and in communications with the state agency without any suggestion of a purpose to deceive claimants (J.A. 312-328, 350-362). Nor have respondents even now pointed to any evidence of deceptive or sinister practices or affirmative acts of concealment, despite our repeated references to the absence of any such evidence in the record. Undeterred, respondents once again assert that petitioners "concealed these practices from all concerned" (Br. 2) and "kept the existence of the policy secret" (id. 4). See also id at 10-11, 14, 31, 36, 38-40. There is no reason to respond further to these unsupported assertions. 3. Not content to persist in allegations of active concealment, respondents now also assert that the decisions denying the class members' claims at the state agency level and documents contained in the administrative records on those claims were "false," "misleading" and "fraudulent." See Br. 4, 11, 21, 22, 29, 30, 31-32, 37, 39, 44. Respondents did not make this argument below, and the courts below made no findings to support it. In any event, this allegation is without merit. At bottom, respondents simply disagree with the substantive standards applied by the state agency. Respondents base their new argument on the manner in which the state agency adjudicator allegedly determined whether a claimant had the ability to work. See Br. 7-9. In order to bring greater reliability and consistency to the evaluation of mental impairments, SSA, after consulting numerous experts, developed a Psychiatric Review Form (the QED) in the late 1960s (Tr. 762-780). See J.A. 311 (PX 3; Tr. 27). That form identifies 17 criteria to be assessed within three major areas: effective intelligence, affective status, and reality contact (J.A. 311). The state agency's reviewing physician is to evaluate all of the evidence in the file and assign a numerical value from 1 to 5 to each factor and an overall rating of from 1 to 5 for the claimant. A rating of 1 means that the claimant is normal in that area, and a rating of 5 means that his impairment meets the listings in the regulations of the most severe impairments that are deemed to be automatically disabling at step 3 of the sequential evaluation process. See Gov't Br. 7-8. A rating of 3 or 4 means that the claimant's impairment is "severe" (for purposes of step 2 of the sequential evaluation process) but does not meet the listings. In that event, the state agency's reviewing physician must assess the claimant's residual functional capacity (RFC) -- the abilities the claimant possesses despite his impairments. See generally DX T (Tr. 28). The case is then referred to a disability analyst, who must determine whether, considering the claimant's RFC, age, education, and work experience, he can perform his prior job or other work. Pet. App. 33a-34a. Several internal SSA memoranda stated that an overall QED rating of less than 5 signifies or will generally lead to a finding that the claimant has the RFC for unskilled work (PX 12 (J.A. 317a; Tr. 27); Compl. Exhs. A, B (J.A. 41, 47)), apparently because the ability to work was regarded as inversely proportional to impairment severity and the factors taken into account in using the QED to measure an impairment against the listings yielded an indication of the claimant's RFC (Tr. 778-780; PX 12 (J.A. 317; Tr. 27)). This did not eliminate the independent determination of whether the claimant could perform his former job or other substantial gainful activity; that remained a vocational, not a medical decision (J.A. 299). But as a matter of practical experience in the early 1980s, the conclusion that a claimant could do unskilled work was perhaps too readily inferred from his failure to meet the listings and there accordingly were few findings of disability for younger workers based on vocational factors at steps 4 and 5 of the sequential evaluation process. Respondents contended below (J.A. 30-35), and the district court agreed (Pet. App. 30a-35a, 60a-61a), that this use of the QED gave "improper weight" to the failure of the claimant's impairment to meet the listings and created an unlawful "presumption" that such a person had the RFC for unskilled work (J.A. 30-35). Against this background, respondents now contend that the documents evidencing the reviewing physician's RFC assessment and the state agency's decisions denying the class members' claims were "false," "misleading," "fraudulent" and a "lie" (Br. 4, 9, 21, 22, 29, 30, 32, 37). This is simply a mischaracterization. The decisions denying a claim typically stated that although there were some limitations on the claimant's abilities, he was able to do certain jobs, such as one in which he would not work closely with other people or would perform simple tasks (see J.A. 60, 64, 87, 91, 102, 104, 106, 117, 134, 140, 142, 150). There is no reason to believe that the drafters of those decisions did not mean what they said. Respondents' objection is only that in arriving at those decisions, the state agency may have inappropriately used the QED and thereby applied substantive standards that were too stringent (J.A. 344-347), not that the decisions themselves were "false" in the sense in which that term is commonly understood. /4/ Although SSA's or the state agency's approach might have been insufficiently individualized, it scarcely constituted affirmative "misconduct," as respondents maintain (Br. 42). /5/ 4. Finally, respondents entirely divorce this case from its broader context. Although respondents cast their complaint in part as a technical objection to the way in which the QED was utilized and the regulations were applied, they also raised more general philosophical disagreements over the circumstances in which mentally impaired claimants should be regarded as capable of working and argued that a more realistic assessment of the claimant's ability to perform in a competitive work environment was necessary. J.A. 30, 32-33. See also J.A. 191, 208; PX 61, at 51-60, 81-86, 107-109 (Tr. 615). These are broad and difficult questions of statutory and social policy that do not lend themselves to resolution in litigation. /6/ Instead, it is Congress and the Secretary who are responsible for fashioning the policies affecting mentally impaired claimants under the Social Security Act, and each has been actively engaged in that endeavor. Both before and since this suit was filed, the Secretary instituted a number of measures in this regard, including steps to ease the impact of continuing disability reviews generally, the convening of a panel of mental health experts to address the guidelines for mental evaluations, the issuance of numerous policy statements, rulings and a new RFC form, and reevaluation and reissuance of a revised QED form. Tr. 661-662, 669, 678, 687-688, 698. See also Gov't Br. 9-10. In addition, on June 7, 1983, the Secretary announced a moratorium on continuing disability reviews of most mentally impaired beneficiaries pending a reevaluation of the listings of mental impairments and related procedures. H.R. Rep. 98-618, 98th Cong., 2d Sess. 15 (1984). Congress built on the Secretary's initiatives when it enacted the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794 et seq. In Section 5(a) of that Act, 98 Stat. 1801, Congress directed the Secretary to revise the mental impairment listings and specified that "(t)he revised criteria and listings, alone and in combination with assessments of the residual functional capacity of the individuals involved, shall be designed to realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment." The legislative history makes clear that this requirement was intended to enable the Secretary to address the substantive issues identified in this case. See H.R. Rep. 98-618, supra, at 15. Congress also extended the Secretary's moratorium pending the publication of the new criteria and RFC procedures (Section 5(b), 98 Stat. 1801), which were published on August 28, 1985. 50 Fed. Reg. 35038. Congress further provided in Section 5(c) of the 1984 Act, 98 Stat. 1801, that any mentally impaired person whose claim for initial or continued disability benefits was denied on or after March 1, 1981 could reapply and be reevaluated under the new criteria, with benefits to be paid on the basis of the new application. /7/ Congress did not, however, provide for the reopening of the claims of all members of pending certified class actions raising the mental impairment issue, as it did in Section 2(d) of the 1984 Act, 98 Stat. 1797, with respect to class actions raising the medical improvement issue. Under Section 2(d), Congress provided for the redetermination of claims whether or not the individual class members involved personally satisfied the jurisdictional requirements of 42 U.S.C. 405(g). 130 Cong. Rec. S11454 (daily ed. Sept. 19, 1984) (remarks of Sen. Dole); Heckler v. Kuehner, No. 83-1593 (Nov. 5, 1984). Congress's refusal to grant similar relief from the procedural defaults by the unnamed class members in this case indicates that Congress deliberately intended to foreclose that relief. United States v. Erika, Inc., 456 U.S. 201, 208 (1982). The vast majority of the unnamed class members in this case are entitled to relief under the special provisions of the 1984 Act, either as members of the medical improvement class in Schisler v. Heckler, 107 F.R.D. 609 (W.D.N.Y. 1984), appeal pending, No. 85-6092 (2d Cir.), /8/ or pursuant to the special reapplication provisions of Section 5(c) of the 1984 Act for mental impairment cases. See note 7, supra. In view of Congress's carefully crafted provisions for affording special relief as part of its thorough evaluation and correction of perceived systemic difficulties in the disability program, "it would be an unwarranted judicial intrusion into this pervasively regulated area" (Heckler v. Day, No. 82-1371 (May 22, 1984), slip op. 15) for courts to award additional relief that Congress withheld. There accordingly is no reason not to give effect to the explicit jurisdictional prerequisites Congress has set forth in Section 405(g). B. Respondents urge the Court to adopt a "balancing approach" (Br. 18) to the question of exhaustion of administrative remedies, under which a court would make its own ad hoc assessment of whether the purposes of exhaustion would be served by postponing judicial review, the nature of the harm to the claimant, and the extent to which the issue involved is "collateral" to the merits. See Resp. Br. 16-25. The most obvious defect in respondents' approach is that it is utterly inconsistent with the statutory text. Section 405(g) authorizes an individual to obtain judicial review only of the Secretary's "final decision" made "after a hearing." As we have explained (Gov't Br. 19-20), the specification that the formal administrative hearing must precede judicial review makes clear that Congress has vested the district courts with jurisdiction under 42 U.S.C. 405(g) to review only the Secretary's final administrative judgment on an individual's claim for benefits -- at least in the absence of a wholly collateral issue that is subject to immediate judicial review under the collateral order doctrine of Mathews v. Eldridge, 424 U.S. 319, 330-332 (1976), and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547 (1949). Respondents make no effort to reconcile their argument with the words Congress used. Nor do respondents even mention the regulations implementing 42 U.S.C. 405(g) that have been in effect since the inception of the Social Security program, which have consistently required full exhaustion through the Appeals Council stage as a precondition to judicial review and which were incorporated into the disability and SSI programs in 1956 and 1972. See Gov't Br. 22-24. The statutory text and implementing regulations bar jurisdiction here. Incredibly, respondents assert (Br. 18) that Weinberger v. Salfi, 422 U.S. 749 (1975), supports their judicial balancing approach to exhaustion. They are wrong. In Salfi, the Court held that the requirement that a claimant obtain the Secretary's "final decision" is a "statutorily specified jurisdictional prerequisite" to suit that may not be dispensed with by the district court even if it believes that exhaustion would be futile. 422 U.S. at 766. The Court further held in Salfi that the Secretary had the authority under 42 U.S.C. 405(A) to promulgate regulations that specify when a decision shall be regarded as final for purposes of judicial review (422 U.S. at 766), and it recognized that the governing regulations require a decision of the Appeals Council for that purpose (id. at 765). Those holdings control this case. /9/ Nor does Eldridge support a generalized "balancing" approach to exhaustion under 42 U.S.C. 405(g), as respondents seem to believe (Br. 18, 22-23, 28) -- any more than a court of appeals may exercise jurisdiction under the identical "final decision" language in 28 U.S.C. 1291 by application of a balancing test. Instead, Eldridge, like Cohen, recognizes a carefully confined exception to the otherwise controlling final judgment rule. As we have explained (Gov't Br. 35-39), the legal issue in Eldridge, like that in Cohen, satisfied the familiar three-part test: it conclusively determined the disputed question, resolved an important issue completely separate from the merits of the action, and was effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. at 468. Contrary to respondents' suggestion (Br. 28), the issue they raise concerning the assessment of a claimant's RFC does not even remotely satisfy that three part test. For example, respondents' assertion (Br. 28) that SSA's actions "conclusively denied" the class members their right to an individualized assessment of RFC at the initial determination and reconsideration levels obviously misses the point. The question for purposes of the Eldridge/Cohen test is whether the disputed question has been conclusively determined in a way that is binding in all administrative proceedings through the Appeals Council stage. Similarly, as even the court of appeals conceded (Pet. App. 14a), respondents' challenge to the method of determining RFC is not completely separate from the merits of the unnamed class members' claims for benefits; indeed, RFC is an integral part of the five-step sequential evaluation process that is designed to resolve the merits of a claimant's alleged disability and entitlement to benefits. Finally, respondents make the frivolous contention that the third prong of the collateral order test is satisfied because claimants did not know of the existence of the challenged policy at the state level, and the issue of the legality of that policy therefore is effectively unreviewable in an individual action for judicial review under 42 U.S.C. 405(g). A Claimant's failure to identify and raise a legal issue does not render that issue effectively unreviewable by a court under the Eldridge/Cohen test. The relevant inquiry is whether the court could effectively review the issues if it were raised. In this case, the assessment of RFC clearly is reviewable in an individual action under 42 U.S.C. 405(g). /10/ Finally, respondents err in contending (Br. 22-23) that a court may dispense with the exhaustion requirement because of its own perception that a claimant might suffer hardship as a result of the interlocutory denial of his claim on the merits. As we have explained (Gov't Br. 27-29), Congress and the Secretary established the administrative review mechanism with the generality of cases in mind -- including those involving alleged mental impairments (see page 3, infra) -- and they did not authorize circumvention of those procedures on the basis of a time-consuming inquiry into the circumstances of a particular claimant. Respondents rely (Br. 22) on the Court's observation in Eldridge that the claimant there had "raised at least a colorable claim that because of his physical condition and dependency upon disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments." 424 U.S. at 331. However, in that statement, the Court was simply referring to the nature of the constitutional argument that the claimant was making, which was that he had a due process right to a pre-termination evidentiary hearing before an ALJ because the retroactive award of benefits following the hearing would not afford him full relief. The Court concluded that this constitutional argument was at least colorable; and because the other criteria for an appealable collateral issue were satisfied, the Court held that the district court had jurisdiction under 42 U.S.C. 405(g) to consider that argument. But of course the Court then rejected the claimant's argument that the alleged injury resulting from the termination of benefits prior to the ALJ hearing was irreparable as a constitutional matter. 424 U.S. at 332-349. As a statutory matter, Congress has determined that a retroactive award of benefits at a subsequent stage of the proceedings is an adequate remedy for any injury that might result from an erroneous denial of benefits at a preliminary stage of the administrative review process, except in those situations in which Congress has provided for the continuation of benefits pending administrative review. See Gov't Br. 5, 22-23, 28-29. The courts below had no authority to overturn Congress's judgment and permit the unnamed class members to ignore the administrative procedures that have been carefully fashioned by Congress and the Secretary. C. Respondents also contend (Br. 31-45) that the district court had jurisdiction over the claims of the unnamed class members who received final decisions denying their claims more than 60 days before this suit was filed. Once again, however, respondents' jurisdictional argument simply can not be squared with the explicit terms of Congress's consent to suit under 42 U.S.C. 405(g). That Section provides that an individual may obtain judicial review only "by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." Thus, Congress has provided for only one exception to the 60-day time limit, which applies where the Secretary has allowed the claimant additional time within which to seek review. That exception has no application here, because the Secretary has not exercised his authority to extend the filing period for the unnamed class members, and in fact none of those claimants has submitted such a request under the implementing regulations that govern such extensions. See Gov't Br. 40. The existence of this one exception to the 60-day filing period reinforces the conclusion that Congress otherwise adhered to the established rule that limitations on the time within which a suit may be brought against the federal government are conditions on the waiver of sovereign immunity and define the jurisdiction of the court to entertain the suit. See Gov't Br. 42-46. The courts below therefore were not authorized to intrude their own notions of tolling into the statutory scheme. The only decision of this Court upon which respondents rely (Br. 33, 36, 38, 40) that involved a suit against the federal government is Honda v. Clark, 386 U.S. 484 (1967). However, that decision undermines rather than supports respondents' position. The Court in Honda in fact reaffirmed the established rule that in a suit against the sovereign, the statute of limitations may not be tolled without express congressional consent because such a provision is a condition on the waiver of sovereign immunity. 386 U.S. at 501. The Court found that settled rule inapplicable in Honda only because it was not a case in which "the public treasury was directly affected" (ibid.). Honda arose under the Trading with the Enemy Act and involved the return of seized enemy assets to United States creditors, "assets that were never contemplated as finding their way permanently into the public fisc" (ibid.). In this case, by contrast, "the public treasury (is) directly affected" because respondents seek to recover money from the Trust Fund under Title II or appropriated funds under the SSI program. Principles of sovereign immunity -- including the rule that conditions on Congress's waiver of that immunity may not be waived or extended by the courts in the absence of express congressional authorization -- apply with particular force where a claim for money against the federal government is involved. See, e.g., 5 U.S.C. 702; Finn v. United States, 123 U.S. 227, 232-233 (1887); Munro v. United States, 303 U.S. 36, 41 (1938); Soriano v. United States, 352 U.S. 270, 275-276 (1957). Respondents' argument in favor of excusing the class members' failure to file suit within 60 days depends entirely on the premise that the Secretary engaged in acts of concealment. As we have explained, however, there is no evidence of any such affirmative concealment. See page 5, supra. Moreover, the notices the class members received expressly informed them that they had been found by the state agency not to be entitled to benefits because it was determined that they could work. See pages 7-8, supra. That notice unquestionably conveyed the essential information to the claimants involved. The notices also informed the recipients that they had 60 days within which to seek further review and that they could contact SSA for further information. See, e.g., J.A. 61. Accordingly, no class member who thought he could not work and wished to challenge the state agency's contrary conclusion faced any impediment to doing so. /11/ Finally, respondents argue (Br. 36) that the Secretary waived the 60-day filing requirement because it was not specifically mentioned in the answer to the complaint. However, as we have pointed out (Gov't Br. 45 n.14), the answer did state that the court was without subject matter jurisdiction (J.A. 57), which encompassed the failure of any class members to comply with the prerequisites for invoking the jurisdiction of the district court. In any event, no objection is raised here to the timeliness of the action insofar as the named plaintiffs are concerned. The broadly disruptive impact of the decision below concerns the district court's exercise of jurisdiction over the claims of the unnamed class members. The class had been certified before the answer was filed (J.A. 2), and it already had been defined to include individuals whose claims had been denied more than three years before this suit was filed. However, Fed. R. Civ. P. 23(c)(1) provides that the class definition is subject to revision by the court at any time prior to the court's decision. In light of the explicit 60-day limitation Congress imposed on the bringing of actions under 42 U.S.C. 405(g) -- and particularly in light of the jurisdictional nature of that limitation -- the district court was obligated to modify the class definition to conform to the 60-day requirement whenever the defect in the initial certification was called to its attention. CONCLUSION For the foregoing reasons and the additional reasons stated in our opening brief, it is respectfully submitted that the judgment of the court of appeals should be reversed. CHARLES FRIED Solicitor General FEBRUARY 1986 /1/ Moreover, one of the five named plaintiffs whose claim was denied by the ALJ subsequently was found by the ALJ to be disabled after the Appeals Council granted his motion to reopen the decision (J.A. 128-128a (Richard Roe II); Resp. Br. 29). Similarly, the one named plaintiff who did not request an ALJ hearing was found to be disabled after he filed a second application (J.A. 22-23 (Richard Roe III)). /2/ The claims of three of these four named plaintiffs subsequently were remanded by the district court for further proceedings. (Jane Doe I) v. Heckler, Civ. No. CV-83-0029 (E.D.N.Y. Jan. 12, 1984) (see Resp. Br. 29); (Jane Doe III) v. Secretary of HHS, Civ. No. CV-83-4140 (E.D.N.Y. Apr. 17, 1984); (Richard Roe V) v. Heckler, Civ. No. CV-83-4139 (E.D.N.Y. Aug. 17, 1984). This relief in individual suits under 42 U.S.C. 405(g) of course demonstrates that issues concerning the determination of class members' entitlement to benefits were fully reviewable following the Secretary's "final decision" on any class member's claim for benefits. Compare Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The fourth named plaintiff who sought judicial review ((Richard Roe II) v. Heckler, Civ. No. CV-83-3388 (E.D.N.Y.) (J.A. 22)) was subsequently awarded benefits without the need for judicial intervention. See note 2, supra. /3/ The characterization of the challenged application of the regulations by the courts below as "secret," "covert" or "clandestine" (Pet. App. 7a, 18a, 39a, 41a), upon which respondents rely (Br. 9), apparently reflects nothing more than the fact that the memoranda and other material were not affirmatively disclosed to the public. See Pet. App. 18a (policy "remained operative but undisclosed"); id. at 39a (counsel, social workers and advisers were "unaware" of its existence); id. at 41a ("unpublished internal memoranda"). /4/ The same is true of documents recording the determination of RFC. The only such document respondents cite (Br. 20-21, 29) is not a QED, but a "Residual Functional Capacity Assessment" (J.A. 158-158c) that was developed in 1982 to provide for the sort of more realistic assessment of RFC that respondents have urged (Tr. 698-699). Contrary to respondents' assertion (Br. 21, 29), there is no indication that this one RFC Assessment in the record was a "sham." That form, from the file of Richard Roe V, also is the evidence upon which respondents principally rely in arguing (Br. 20-21) that the challenged policy at the state agency level tainted subsequent administrative proceedings because the ALJ relied on the record developed by the state agency. However, although the ALJ who denied Richard Roe V's claim cited many other exhibits from the administrative record, he did not cite the RFC Assessment form. See J.A. 152-156. Compare J.A. 111a (rejecting reviewing physician's statement of RFC concerning Richard Roe I). /5/ Respondents cite (Br. 7-9) testimony and a memorandum of a Dr. Anne Geller, a psychiatrist who performed review functions in SSA's regional office, in support of the notion that physicians were "pressured" to make decisions that were contrary to their medical beliefs. Respondents' contention ignores the fact that a finding of disability is ultimately a legal, not a medical judgment, and that the Secretary must provide for the uniform application of governing standards irrespective of the personal views of individual physicians. Indeed, Dr. Geller stated her belief that there were legitimate differences in judgment and philosophical approach involved in disagreements over the appropriate ascertainment of RFC (J.A. 188), that her judgment "may be more lenient than somebody else" (ibid.), and that the SSA officials in Baltimore with whom she disagreed in fact believed that the claimants were capable of working within the meaning of the governing legal standards (id. at 195, 196-197). /6/ Indeed, the wide-ranging proceedings on these issues in this case were far removed from the sort of action for judicial review of a discrete agency decision that Congress had in mind when it enacted 42 U.S.C. 405(g). That Section on its face does not contemplate that a court will conduct any evidentiary hearing at all: it provides that the court may enter judgment "upon the pleadings and transcript of the (administrative) record" and that the case will be remanded to the Secretary for the receipt of any additional evidence. /7/ Consistent with the representations in our reply brief (at 4-5) on the application for a stay that was granted by the Court in this case on July 1, 1985 (No. A-972), SSA sent notices to all members of the class whose claims were denied on or after March 1, 1981, informing them of their right to reapply for benefits under Section 5(c) of the 1984 Act. /8/ See the application for a stay pending certiorari (at 8-9 & n.6) in this case. /9/ Respondents discuss (Br. 19-21) the various purposes underlying administrative exhaustion that were identified in Salfi (422 U.S. at 765) -- on the mistaken premise that a court may dispense with exhaustion if it believes that those purposes do not apply. That premise of course is inconsistent with the holding in Salfi itself that the final decision requirement is statutorily mandated and cannot be dispensed with by a court. It was on this basis that the Court in Salfi distinguished the exhaustion rule under 42 U.S.C. 405(g) from the judicially fashioned exhaustion principles in McKart v. United States, 395 U.S. 185 (1969), from which the Court derived the purposes underlying the exhaustion rule (422 U.S. at 765, citing 395 U.S. at 193-194). In any event, as we have explained in our opening brief (at 30-35), those purposes clearly would have been served by exhaustion here, especially since the named plaintiffs either received benefits in subsequent proceedings or were denied benefits other grounds. See pages 3-4, supra. In arguing that the purposes of exhaustion support judicial "waiver" of that requirement, respondents focus not on the class members' individual claims for benefits or the possibility that they might have recovered in further proceedings, but on whether exhaustion should be required with respect to the challenged SSA policy. See Resp. Br. 19-21. However, 42 U.S.C. 405(g) does not authorize judicial review of agency "policies" as such. It provides for review of a claim for benefits, and authorizes a court to consider an agency rule or policy only insofar as it has a bearing on the disposition of that claim. /10/ Mitchell v. Forsyth, No. 84-335 (June 19, 1985), cited by respondents (Br. 24, 28), likewise does not help their cause. The Court there held that a claim of qualified immunity is a claim of a right not to stand trial and is therefore subject to immediate appeal in the same manner as claims arising under the Double Jeopardy and Speech or Debate Clauses. Slip op. 13-15. This case obviously does not involve a right not to stand trial. Respondents rely on the observation in Forsyth that the claim of immunity was "conceptually distinct" from the merits, even though there was a factual overlap between the two. Id. at 15. Here, however, the manner in which RFC is assessed is a step toward resolution of the merits; it manifestly is not distinct, conceptually or otherwise, from the merits. /11/ Respondents argue (Br. 42-45) that the 60-day period did not begin to run because the notices of the state agency decisions did not comply with 42 U.S.C. 405(b)(1) and 1383(c)(1), which provide that the state agency's decision must contain a statement of the case, a discussion of the evidence, and the reasons on which it is based. This argument was not presented below and therefore is not properly before the Court. In any event, the state agency decisions in the record (cited at page 8, supra) did contain this information. Moreover, Sections 405(b)(1) and 1383(c)(1) are not addressed to the content of the Secretary's "final decision," which is rendered by the Appeals Council and triggers the claimant's right of judicial review. Under Section 405(g), the running of the 60-day period is triggered by the mailing of "notice" of that decision; accordingly, the contents of even the final decision have no bearing on the 60-day suit filing period.