MARGARET M. HECKLER, 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

   Brief For The Petitioners

                      PARTIES TO THE PROCEEDINGS

   The petitioners are Margaret M. Heckler, Secretary of Health and
Human Services, and Martha McSteen, the Acting Commissioner of Social
Security.

   The eight individual respondents are Jane Does I-III and Richard
Rose I-V.  These eight respondents are represenatives of the following
class certified by the district court (Pet. App. 65a):

      All individuals residing in the State of New York who have
      applied for or received Title II and/or Title XVI benefits and
      who, between April 1, 1980, and May 15, 1983, were found by the
      New York State Office of Disability Determinations to have a
      functional Psychotic or functional non-psychotic mental
      impairment which is severe (i.e., determined under 20 C.F.R.
      Sections 404.1520(c) or Sections 416.930(c) to require
      evaluation under Appendix I of that Regulation), and whose
      applications for benefits have been denied or whose benefits
      have been or will be terminated, on the basis of defendant's
      determination that such persons are capable of substantial
      gainful activity.

The governmental respondents are the City of New York, the New York
City Health and Hospitals Corporation, the State of New York, the
Commissioner of the New York State Department of Social Services, and
the Commissioner of the New York State Office of Mental Health.

            TABLE OF CONTENTS
   Questions Presented
   Parties to the Proceedings
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
      A. The statutory and regulatory framework
         1. Procedural provisions
         2. Substantive provisions
      B. The proceedings in this case
   Summary of argument
   Argument:
      The district court did not have jurisdiction under 42 U.S.C.
      405(g) over the claim of any class member who did not fully
      exhaust his administrative remedies and obtain judicial
      review within 60 days of the Secretary's "final decision"
      on his claim for benefits.
      I. There is no right of judicial review under 42 U.S.C.
         405(g) prior to full exhaustion of administrative remedies
         unless the claimant raises an issue falling within the
         narrow exception for wholly "collateral" matters
         A. Only a decision by the Appeals Council is a
            final decision of the Secretary on the individual's claim
            for benefits
         B. The court of appeals' ruling dispensing with exhaustion
            cannot be reconciled with the "final decision" requirement
            in 42 U.S.C. 405(g)
         C. This case does not fall within the narrow exception
            permitting judicial review of entirely collateral matters
            prior to the Appeals Council's decision
      II. A claimant must seek judicial review under 42 U.S.C.
            405(g) within 60 days of the Secretary's final decison
            unless the Secretary has extended that filing period
         A. The district court had no authority to extend the 60-day
            filing period in 42 U.S.C. 405(g)
            1. The condition that a suit be filed within 60 days is an
               explicit limitation on the district court's
jurisdiction
               under 42 U.S.C. 4-5(g)
            2. The court of appeals had no authority to extend the
               60-day filing period even if it is not strictly
               jurisdictional in nature
         B. The 60-day filing requirement cannot be avoided by
            resort to mandamus jurisdiction under 28 U.S.C. 1361
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-23a) is reported
at 742 F.2d 729, and the opinion of the court of appeals denying the
Secretary's petition for rehearing (Pet. App. 24a-29a), is reported at
755 F.2d 31.  The opinion of the district court (Pet.  App. 30a-63a)
is reported at 578 F. Supp. 1109.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 27,
1984, and a petition for rehearing was denied on February 7, 1985
(Pet. App. 24a-29a).  By order dated April 29, 1985, Justice Marshall
extended the time within which to file a petition for a writ of
certiorari to and including June 7, 1985, and the petition was filed
on that date.  The petition for a writ of certiorari was granted on
October 7, 1985 (J.A. 337).  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

             STATUTORY AND REGULATORY PROVISIONS INVOLVED

   Section 205(g) of the Social Security Act, 42 U.S.C. 405(g);
Section 5 of the Social Security Disability Benefits Reform Act of
1984, Pub. L. No. 98-460, 98 Stat. 1801;  and 20 C.F.R. 404.1520 are
reproduced at App., infra, 1a-7a.

                          QUESTIONS PRESENTED

   This is a class action brought pursuant to 42 U.S.C. 405(g) on
behalf of applicants for and recipients of Social Security disability
benefits in New York.  The plaintiffs challenged an interpretation of
applicable regulations that was conveyed by certain personnel of the
Social Security Administration to the state agency responsible for the
initial review of claims for disability benefits.

   The questions presented are:

   1. Whether, in light of the provision in 42 U.S.C. 405(g) that an
individual may obtain judicial review only "after a final decision of
the Secretary made after a hearing to which he was a party," the
district court correctly included within the class numerous claimants
who had not received a "final decision" of the Secretary on their
individual claims for benefits.

   2. Whether, in light of the requirement of 42 U.S.C. 405(g) that a
claimant must seek judicial review within 60 days of the Secretary's
final decision, the district court correctly included within the class
numerous claimants who had received a final decision on their
individual claims for benefits more than 60 days before this class
action was filed.

   3. Whether, if the district court did not have jurisdiction under
42 U.S.C. 405(g) over the claims of those class members who had
received a final decision more than 60 days before this class action
was filed, the court nevertheless could exercise mandamus jurisdiction
under 28 U.S.C. 1361 to require the Secretary to reopen and
readjudicate those claims.

                               STATEMENT

   This is a class action brought on behalf of New York residents
challenging the interpretation by certain Social Security
Administration (SSA) personnel of serveral regulations that implement
the substantive standards of eligibility for disability benefits under
Title II and Title XVI of the Social Security Act.  The merits of the
dispute are not at issue here.  Instead, we have sought review of the
court of appeals' affirmance of the district court's sweeping judgment
that:  (i) awarded relief to class members who were still in the
process of exhausting their administrative remedies when that judgment
was entered;  and (ii) ordered the Secretary to reopen administrative
decisions denying the claims of thousands of other class members that
had become final and binding when the claimants involved failed to
seek further administrative review or judicial review within 60 days.

   A. The Statutory And Regulatory Framework

   Title II of the Social Security Act provides, inter alia, for the
payment of disability insurance benefits to persons whose disability
prevents them from pursuing gainful employment.  42 U.S.C. (& Supp. I)
423.  Disability benefits also are payable under the Supplemental
Security Income (SSI) Program established by Title XVI of the Act.  42
U.S.C. 1382(a).  "The disability programs administered under Titles II
and XVI 'are of a size and extent difficult to comprehend.' Richardson
v. Perales, 402 U.S. 389, 399 (1971).  Approximately two million
disability claims were filed under these two titles in fiscal year
1983." Heckler v. Day, No. 82-1371 (May 22, 1984), slip op. 2
(footnote omitted).  The Secretary of Health and Human Services has
promulgated detailed regulations governing both the procedures for the
adjudication of claims for benefits and the substantive standards of
eligibility under these massive programs.

                       1. Procedural Provisions

   "To facilitate the orderly and sympathetic administration of the
disability program(s) * * *, the Secretary and Congress have
established an unusually protective * * * process for the review and
adjudication of disputed claims." Heckler v. Day, slip op. 2 If it is
determined at any stage of this process that the individual is
eligible for benefits (and if he has not been receiving benefits (see
page 5, infra)), he is entitled to retroactive payments for the period
of his eligiblity.  See Mathews v. Eldridge, 424 U.S. 319, 339 (1976).

   a. Congress has directed that the determination whether an
individual is under a disability shall be made in the first instance
by a state agency, pursuant to regulations, guidelines, and
performance standards established by the Secretary through SSA.  42
U.S.C. 421(a), 1383b(a);  20 C.F.R. 404.1503, 416.903. See Eldridge,
424 U.S. at 335;  Day, slip op. 2, 12.  The furnishing of such
guidance to the state agencies is the responsibility of SSA'S Office
of Operational Policies and Procedures.  The first stage of the
administrative review process is the initial determination, which the
state agency renders on the basis of its consideration of an
application submitted by a person seeking benefits for the first time
or its reassessment of a person who already is receiving benefits.
See Eldridge, 424 U.S. at 337-338.

   b. If the state agency makes an initial determination that a new
applicant is not disabled or that the disability of a current
recipient has ceased, the individual may request a de novo
reconsideration by the state agency.  20 C.F.R. 404.904,
404.907-404.921, 416.1405, 416.1407-416.1421.  /1/ Governing
regulations provide -- and the claimant is personally notified (see,
e.g., J.A. 86) that he must request reconsideration within 90 days of
his receipt fo the adverse initial determination.  20 C.R.R. 404.904,
404.909(a)(1), 416.1404, 416.1409(a).  If the claimant does not do so,
the adverse initial determination becomes "binding" upon him.  20
C.F.R. 404.905, 416.1405.

   c. Under 42 U.S.C. 421(d), if an individual is dissatisfied with
the decision by the state agency after its initial determination and
reconsideration of the claim, he "shall be entitled to a hearing
thereon by the Secretary to the same extent as is provided in (42
U.S.C. 405(b))." See also 42 U.S.C. 1383(c) (1);  20 C.F.R.
404.944-404.965, 416.1429-416.1465.  The Act requires -- and the
claimant is personally notified (see, e.g., J.A. 88-91, 103, 116, 136,
141, 149) -- that he must request such a hearing within 60 days of his
receipt of the state agency's determination (42 U.S.C. (Supp. I)
405(b)(1);  42 U.S.C. 1383 (c)(1), and the state agency's decision
becomes binding upon the claimant if he does not do so.  20 C.F.R.
404.920(a), 404.921, 404.933(b), 416.1404(b)(3), 416.1405,
416.1420(a), 416.1421, 416.1433(b).

   The evidentiary hearing is conducted by an administrative law judge
(ALJ) within SSA'S separate Office of Hearings and Appeals (20 C.F.R.
404.929, 416.1429, 422.201 et seq.).  The ALJ is directed to "look ()
fully into the issues" (20 C.F.R. 404.944, 416.1444).  See Heckler v.
Campbell, 461 U.S. 458, 469 n.12 (1983).  Either the claimant or the
ALJ may develop new evidence or raise new issues that were not
presented to the state agency, and the claimant or his represenattive
has a right to make an oral or written statement regarding the facts
and applicable law.  20 C.F.R. 404.929, 404.944, 404.946, 404.949,
404.950, 416.1429, 416.1444, 416.1446, 416.1449, 416.1450.  In
rendering his decision the ALJ must follow SSA's published regulations
and formal Social Security Rulings (SSRs) (20 C.F.R. 422.408), but he
is not bound by the Programs Operations Manual System (POMs) and other
instructional manterial that SSA's Office of Operational Policies and
Procedures furnishes to state agencies to guide them in their
preliminary evaluation of disability claims.  See Heckler v. Ringer,
No. 82-1772 May 14, 1984), slip op. 2;  S. Rep. 98-466, 98th Cong., 2d
Sess. 18-19 (1984);  H.R. Rep. 98-618, 98th Cong., 2d Sess. 20-22
(1984).

   Because eligibility for SSI benefits is based on need (42 U.S.C.
1382(a)), the Secretary implemented this Court's decision in Goldberg
v. Kelly, 397 U.S. 254 (1970), by providing that an individual who has
been receiving SSI benefits under Title XVI may elect to continue to
receive those benefits from the date of the state agency's
determination that he no longer is disabled until the ALJ has rendered
his decision.  20 C.F.R. 416.1336 (b).  By contract, the Court held in
Eldridge that in the case of disability benefits under Title II, which
are not based on needs, the Due Process Clause does not require the
Secretary to continue payments until the individual has had an
opportunity for an ALJ hearing in SSA.  424 U.S. at 339-349.

   Notwithstanding Eldridge, Congress enacted temporary legislation in
1982 permitting the claimant in a Title II disability cessation case
to elect to continue to receive benefits pending receipt of the ALJ'S
decision, subject to recoupment if the ALJ affirms the state agency's
determination.  42 U.S.C. 423(g), as added by Pub. L. No. 97-455,
Section 2, 96 Stat. 2498.  In the Social Security Disability Benefits
Reform Act of 1984, Congress extended this interim benefits
authorization under Title II until January 1, 1988.  Pub. L. No.
98-460, Section 7, 98 Stat. 1803.  By contrast, Congress has not
provided any similar authorization for the payment of benefits pending
the ALJ'S decision in a case involving a new applicant who was found
by the state agency not to be disabled.

   d. If the decision by the ALJ after a hearing under either Title II
or Title XVI is adverse to the claimant, he then may seek review by
the Appeals Council in SSA.  20 C.F.R. 404.967-404.983,
416.1467-416.1483.  Governing regulations provide that if the claimant
does not seek Appeals Council review within 60 days or such further
period as the Secretary permits, the adverse ALJ's decision becomes
binding.  20 C.F.R. 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468.
Once again, the claimant is specifically informed that he must seek
review within 60 days (see, e.g., J.A. 70, 93, 120, 151).

   e. After the Appeals Council has either denied review of the ALJ's
decisior or has granted review and rendered its own decision, the
Secretary has rendered her "final decision" on the individual's claim
for benefits.  Only then do the Act and implementing regulations
provide for the claimant to seek judicial review in federal district
court, pursuant to 42 U.S.C. 405(g).  See 42 U.S.C. 421(d),
1383(c)(3);  20 C.F.R. 404.900(a)(5), 404.981, 416.1400(a)(5),
416.1481, 422.210.  Section 405(g) requires that the claimant seek
such review "within sixty days after the mailing to him of notice of
(the final) decision or within such further time as the Secretary may
allow." The notice of the Appeals Council's decision informs the
claimant of this requirement (see, e.g., J.A. 83, 127, 157).  If
judicial review is not sought within the time allowed, the Appeals
Council's decision (or the ALJ's decision, if the Appeals Council
denied review) is expressly made binding upon the claimant.  20 C.F.R.
404.981, 404.982, 416.1481, 416.1482.

   f. Although an adverse decision at any step of the administrative
process becomes binding upon the claimant if he does not seek further
review within the time allowed, the Secretary has provided by
regulation that such a decision may be reopened within 12 months for
any reason (see, e.g., J.A. 128), within either two or four years for
good cause, and at any time if the decision was obtained by fraud or
similar fault.  20 C.F.R. 404.987-404.989, 416.1487-416.1489.
However, the Secretary's denial of a request to reopen is not subject
to administrative or judical review.  20 C.F.R. 404.903(l),
416.1403(a)(5).  See Califano v. Sanders, 403 U.S. 99, 108, (1977).

                       2. Substantive Provisions

   Under Title II and Title XVI of the Social Security Act, a person
is entitled to disability benefits only if he is unable "to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. 423(d)(1)(A);
 1382c(a)(3)(A).  The Act further provides that an individual shall be
determined to be under a disability "only if his physical or mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy * * *."
42 U.S.C. (Supp. I) 423)d1(2)(A);  42 U.S.C. 1382c(a)(3)(B).  In 1978,
the Secretary promulgated regulations implementing these statutory
definitions of the term "disability." Campbell, 461 U.S. at 461.  See
20 C.F.R. Pt. 404, Subpt. P.; id, Pt. 416, Subpt. I.  Those
regulations establish a five-step "sequential evaluation" approach for
determining whether a person is disabled.

   At the first step, the state agency employee or the ALJ determines
whether the claimant is engaged in work that constitutes substantial
gainful activity.  If so, the claimant will be found not to be
disabled, and the sequential evaluation process goes no further.  20
C.F.R. 404.1520(b), 416.920(b).  If the claimant is not engaged in
substantial gainful activity, the decisionmaker then determines at
step two whether the claimant's impairment is "severe" -- i.e.,
whether it limits his "physical or mental ability to do basic work
activities" (20 C.F.R. 404.1520(c), 404.1521, 416.920(c), 416.921.
This determination is principally a medical assessment, without
consideration of the claimant's age, education, or work experience.
If the impairment is not medically "severe," the claimant is found not
to be disabled.  However, if the impairment is severe, the
decisionmaker next determines whether it is equal in severity to the
most serious sorts of impairments, which are listed in the regulations
and deemed to be disabling without the need to consider the claimant's
age, education, and work experience.  20 C.F.R. 404.1520(d),
416.920(d).  If so, the claimant is found to be disabled at that step.

   If the claimant's impairment does not meet or equal the listings,
steps four of the sequential evaluation process provides for the
decision-maker to determine the claimant's "residual functional
capacity" (RFC) -- i.e., the mental or physical abilities that the
claimant retains despite his impairment.  In the case of a mental
impairment, the relevant factors include the claimant's "ability to
understand, to carry out and remember instructions, and to respond
appropriately to supervision, co-workers and work pressures in a work
setting." 20 C.F.R. 404.1545(c), 416.945 (c).  The decision-maker then
must determine whether the claimant has a sufficient RFC to enable him
to do his past work.  If he can, he is found not to be disabled.  20
C.F.R. 404.1520(e), 416.920(e).  If the claimant cannot do his past
work, the decision-maker than proceeds at step five to consider the
claimant's RFC and the vocational factors of age, education, and work
experience in order to determine whether the claimant can do other
jobs that exist in the national economy.  20 C.F.R. 404.1520(f),
416.920(f).  This determination ordinarily is made by reference to the
medical-vocational guidelines, which set forth rules to identify
whether jobs requiring specific combinations of attributes exist in
the national economy.  20 C.F.R. Pt. 404, Subpt. P, App. 2.  See
generally Campbell, 461 U.S. at 404-462, 467-468;  Pet. App. 3a,
32a-33a.

   B. The Proceedings In This Case

   1. a. This class action was filed in the United States District
Court for the Eastern District of New York on Feburary 8, 1983 (J.A.
1).  An amended complaint was filed on October 17, 1983 (J.A. 4).  The
named plaintiffs were eight individuals (Jane Does I-III and Richard
Roes I-IV) who had recieved or applied for disability benefits under
Title II or Title XVI of the Social Security Act (J.A. 19-24), as well
as the City of New York, the New York City Health and Hospitals
Corporation, the State of New York, and two state officials (J.A.
18-19).

   The plaintiffs, respondents herein, challenged an interpretation of
the sequential evaluation regulations given by certain SSA personnel
to the state agency responsible for making disability determinations
in New York (J.A. 30-35).  Respondents referred to a Regional SSA
Program Circular and several other SSA memoranda stating that if a
claimant's mental impairment is found at step three not to meet or
equal the listings of the most severe impairments, it will "generally
follow" that the claimant has the RFC at least for unskilled work and
that a finding of disability at step four or five, while "possible,"
is "rare" (J.A. 30-31, 43-51).  Respondents contended that the
approach indicated by these memoranda and other materials gave
"improper weight" to the fact that the claimant's impairment did not
meet or equal the severity listings and that it in effect created a
"presumption" that the claimant was able to do unskilled work, without
an adequate individualized evaluation of his capacity to engage in
substantial gainful activity.  In respondents' view, such an
evaluation should consider such factors as the claimant's recent prior
work history, his reaction to stressful situations, the risk and
effect of a possible recurrence of symptoms, and his performance in a
work-like setting (A.J. 32-38).

   b. Before this suit was filed, another district court had granted a
preliminary injunction in a class action raising a similar challenge.
Mental Health Association of Minnesota v. Schweiker, 554 F. Supp. 157
(D. Minn. 1982), aff'd, 720 F.2d 965 (8th Cir. 1983).  In response to
that suit, the Commissioner of Social Security, on January 3, 1983,
sent a memorandum to all SSA Regional Commissioners, all SSA field
assessment officers, and all state agencies that made disability
determinations (DXM;  Pet. App. 69a-70a;  Tr. 28).  The Commissioner's
memorandum made clear that a finding that a claimant is able to engage
in substantial gainful activity cannot be justified solely on the
basis of a finding at step three of the sequential evaluation process
that his mental impairment does not meet or equal the listings.
Instead, the memorandum stressed that under existing regulations and
POMS instructions, the sequential evaluation process must continue to
a consideration of the claimant's RFC and vocational factors at steps
four and five.  The Commissioner's memorandum instructed the Regional
Commissioners and SSA field assessment officers to work with state
agency administrators "immediately" in order "to assure that these
principles are reviewed with every adjudicator" (id. at 69a).

   c. The district court rendered its decision on January 11, 1984
(Pet. App. 30a), more than a year after the Commissioner sent the
corrective instructions just discussed.  The court acknowledged that
the challenged interpretation of the regulations was no longer being
applied (id. at 39a).  But the court nevertheless chose to address
that interpretation, found it contrary to the Act and regulations, and
ordered broad relief to the members of the certified class (id. at
31a-42a, 60a-63a).  That class consists of all New York residents who
between April 1, 1980 and May 15, 1983, were found by the state agency
to have a severe functional psychotic or non-psychotic mental
impairment that did not meet or equal the listings, and whose
applications were denied or benefits were terminated because of a
determination that they were capable of performing substantial gainful
activity (id. at 65a).

   The district court rejected the Secretary's contention that it
could not include within the class under 42 U.S.C. 405(g) any persons
who had not exhausted their administrative remedies or sought judicial
review within 60 days of the Secretary's final decision denying their
individual claims for benefits (Pet. App. 43a-46a, 59a-60a).  As
relief, the court ordered the Secretary to reopen all adverse
administrative decisions affecting the class members, although it
provided that any class member who had an appeal pending before an ALJ
or the Appeals Council could proceed with that appeal (id. at
65a-66a).

   2. a. The court of appeals affirmed, rejecting the Secretary's
jurisdictional arguments (Pet. App. 1a-23a).  The court conceded that
the Secretary had not waived the requirement that a claimant exhaust
his administrative remedies through the Appeals Council stage in order
to obtain a "final decision" subject to judicial review under 42
U.S.C. 405(g).  But the court granted a "judicial waiver" of that
requirement pursuant to what it termed a "general approach" to the
exhaustion question, under which "no one factor is critical" and a
court may "balanc(e) the competing considerations to arrive at a just
result under the circumstances presented" (Pet. App. 13a).

   Applying its balancing approach, the court of appeals acknowledged
that the class members' argument that the Secretary had failed to
assess their RFC on an individualized basis was not "entirely"
collateral to their claims for benefits, as this 'court had required
in Eldridge, 424 U.S. at 330, and Ringer, slip op. 14 (Pet. App. 14a).
 But the court distinguished Ringer on the ground that it involved a
challenge to "substantive standards," while this case involved what
the court characterized as a "procedural irregularity" (Pet. App.
14a).  The court also believed that exhaustion should not be required
because it would be "futile," even though some individual class member
could have prevailed on their claims for benefits if they had pursued
administrative appeals (id. at 15a).  The court reasoned that the
assertedly "procedural right" to an individualized assessment of RFC
could not be vindicated in such an appeal (ibid.) and that a claimant
should not have to undergo the "ordeal" of pursuing his administrative
remedies (id. at 14a).  The court added that it saw no reason to
require exhaustion in order to allow SSA to apply its "'experience and
expertise'" and "correct its own errors'" (id. at 15a, quoting
Weingerger v. Salfi, 422 U.S. 749, 765 (1975)) despite the fact that
the Commissioner of Social Security already had corrected the agency's
error before this suit was filed (see pages 9-10 supra).

   b. Although 42 U.S.C. 405(g) requires that a claimant seek judicial
review within 60 days of the Secretary's "final decision" on his own
claim for benefits, the court of appeals further held that this action
could be pursued on behalf of any class member who was found by the
state agency not to be disabled at any time on or after April 1, 1980
-- almost three years before this suit was filed (Pet. App. 15a-18a).
The court reasoned that the running of the 60-day filing period should
be deemed to have been "tolled" for all affected claimants in New York
during the time that the challenged presumption concerning RFC
"remained operative but undisclosed" (id. at 18a).

   The court of appeals conceded that the individual class members
knew of the denial or loss of their benefits (notice of which triggers
the running of the 60-day filing period under 42 U.S.C. 405(g)).  But
the court excused all of the class members from complying with the
60-day requirement on the ground that the claimants did not know that
the denial of their claims was based on a systematic "procedural
irregularity" that rendered them "subject to court challenge" (Pet.
App. 18a).  In the alternative, the court of appeals held that even if
the district court did not have did not have jurisdiction over these
time-barred claims under 42 U.S.C. 405(g), it could require the
reopening of those claims through the exercise of mandamus
jurisdiction under 28 U.S.C. 1361 (Pet. App. 19a-20a).  /2/

                          SUMMARY of ARGUMENT

   I.A. The court of appeals had no authority to excuse the procedural
default of the thousands of class members who did not exhaust their
administrative remedies.  The existence of the "final decision"
required by 42 U.S.C. 405(g) is a "statutorily specified
jurisdictional prerequisite" to suite.  Weinberger v. Salfi, 422 U.S.
749, 766 (1975).  Since the enactment of Section 405(g) in 1939,
governing regulations have provided that a decision of the Appeals
Council is the Secretary's "final decision" on an individual's claim
for benefits.  Thus, each class member in this case was required to
request an ALJ and the Appeals Council to correct any errors committed
by the state agency before requesting a court to do so.

   B. The court of appeals completely disregarded this firmly
entrenched limitation on the exercise of subject matter jurisdiction
under 42 U.S.C. 405(g) by holding that a court may grant a "judicial
waiver" of the exhaustion requirement on a case-by-case basis.  This
ad hoc balancing approach would be totally unworkable in the vast
Social Security programs, in which millions of claims for benefits and
thounsands of actions for judicial review are filed annually.  Heckler
v. Ringer;  No. 82-1772 (May 14, 1984), slip op. 23.

   Furthermore, each of the factors the court of appeals weighed in
the balance was beyond its province to consider.  The court's reliance
on its own assessment that exhaustion would be futile cannot be
reconciled with the holding in Salfi that a "final decision" is a
jurisdictional prerequisite that "may not be dispensed with merely by
a judicial conclusion of futility" (422 U.S. at 766 (emphasis added)).
 The court's notion that exhaustion could be dispensed with because it
believed that some unspecified number of class members otherwise would
experience hardship ignores the fact that Congress mandated a uniform
exhausation rule, rather than an individualized jurisdictional
inquiry, based on its own categorical balancing of individual hardship
against the need to prevent premature judicial intervention in the
administrative process.  Finally, the court's view that exhaustion was
unnecessary because respondents raised only a "procedural" challenge
was rejected in Ringer, slip op. 14-16.

   The ALJ and Appeals Council stages, which the class members in this
case were permitted to ignore, furnish the Secretary with her
principal opportunity to apply her expertise and correct errors by the
state agency.  In fact, that is exactly what happened in the case of
the eight named plaintiffs, three of whom were found by the ALJ to be
disabled, and the remaining five of whom were found not to be disabled
for reasons unrelated to the presumption that respondents alleged had
been applied by the state agency.  Moreover, the court of appeals'
dispensing with exhaustion was egregiously disruptive of sound
administration insofar as it affected the claims of thousnads of
unnamed class members.  Each of those claimants knowingly abandoned
his own individual claim for benefits when he was personally notified
of his right to seek further administrative review within 60 days but
declined to do so.  There was no justification for the court of
appeals to require the Secretary to divert her scarce resources to
reopen those closed cases.

   C. The only exception to the requirement under 42 U.S.C. 405(g)
that there be a final administrative judgment on the claim for
benefits applies to wholly "collateral" matters.  This exception was
recognized in Mathews v. Eldridge, 424 U.S. 319, 330-332, (1976), and
the factors upon which the Court relied precisely parallel the
three-part test for application of the collateral order exception to
the final judgment rule under 28 U.S.C. 1291 and Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 545-547 (1949).  See e.g.,
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).  Respondent's
challenge to the alleged use by the state agency did not "conclusively
determine the disputed question," since the ALJ's and Appeals Council
concededly were not required to apply such a presumption.  Second,
this challenge was directly related to, not "completely separate from
the merits" of, their claims for benefits.  Third, any objection to
the manner in which any individual class member's RFC was assessed was
not "effectively unreviewable on appeal from a final judgment." Courts
routinely review such objections after the Appeals Council has ruled.

   II.A. The courts below also clearly erred in including in the class
anyone who received a final decision more than 60 days before this
suit was filed, because 42 U.S.C. 405(g) provides that a claimant must
seek judicial review "within sixty days after the mailing to him of
notice of such decision or within such further time as the Secretary
may allow." There is no indication that any of the time-barred class
members invoked the procedures under the Secretary's regulations for
extending the 60-day period upon written request and a showing of
"good cause." Like the requirement of a "final decision," compliance
with the 60-day filing requirement that appears in the same sentence
of Section 405(g) is a jurisdictional prerequisite to suit that may
not be dispensed with by a court.  The jurisdictional nature of such
limitations on suits against the government is of long standing, and
there is no indication that Congress intended to depart from that rule
when it enacted Section 405(g).

   Even if the 60-day filing requirement is not strictly
jurisdictional, such limitations must be strictly construed and are
not subject to judicial tolling.  The court of appeals nevertheless
sustained the district courtS exercise of jurisdiction on the theory
that the running of the 60-day filing period was "effectively tolled"
on a state-wide basis during the time that the challenged presumption
concerning the assessment of RFC was "undisclosed" (Pet. App.
17a-18a).  This sweeping tolling rule is particularly objectionable,
because it would retroactively toll the running of the 60-day period
on a class-wide basis whenever an interpretation of the Act or
regulations that was contained in an internal memorandum later turns
out to have been erroneous.  That result would broadly frustrate the
congressional purpose embodied in Section 405(g), "to forestall
repetitive or belated litigation of state eligibility claims."
Califano v. Sanders, 430 U.S. 99, 108 (1977).

   B. The jurisdictional limitations imposed by 42 U.S.C. 405(g)
cannot be avoided by resort to mandamus jurisdiction under 28 U.S.C.
1361.  The second sentence of 42 U.S.C. 405(g) bars judicial review of
the Secretary's decision except as provided in Section 405(g), and
therefore necessarily forecloses review by way of mandanus.  Mandamus
relief is unavailable in this case in any event because (i) the
time-barred class members had an adequate remedy under Section 405(g),
(ii) the Secretary's determination of a claimant's disability is
discretionary in nature and (iii) the Secretary has no mandatory duty
to reopen claims after the 60-day period for judicial review has
expired.

                               ARGUMENT

 THE DISTRICT COURT DID NOT HAVE JURISDICTION UNDER 42 U.S.C. 405(g)
OVER THE CLAIM OF ANY CLASS MEMBER WHO DID NOT FULLY EXHAUST HIS
ADMINISTRATIVE REMEDIES AND OBTAIN JUDICIAL REVIEW WITHIN 60 DAYS OF
THE SECRETARY'S "FINAL DECISION" ON HIS CLAIM FOR BENEFITS

   Congress has granted only a limited right of judicial review to
persons seeking benefits under the Social Security Act.  That right is
conferred by 42 U.S.C. 405(g), which vests jurisdiction in the
district courts and provides in relevant part:

         Any individual, after any final decision of the Secretary
      made after a hearing to which he was a party, irrespective of
      the amount in controversy, may obtain a review of such decision
      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.

If the individual has not satisfied the straightforward prerequisites
to suit set forth in this Section, the court has no authority to
entertain his action for judicial review.  Moreover, this Court
repeatedly has held that a class may be certified in an action arising
under the Social Security Act only if each of the class members
individually satisfies the requirements prescribed by 42 U.S.C.
405(g).  Califano v. Yamasaki, 442 U.S. 682, 701, 704 (1979);  Mathews
v. Diaz, 426 U.S. 67, 71 n.3 (1976);  Weinberger v. Salfi, 422 U.S.
749, 764 (1975).  See also Heckler v. Lopez, 464 U.S. 879, 881 (1983),
(Stevens J., dissenting in part).

   Despite these settled rules, the court of appeals held in this case
that the district court correctly included within the class thousands
of claimants who did not obtain the requisite "final decision" of the
Secretary or seek judicial review within 60 days of that final
decision.  In place of the clear-cut exhaustion rule, the court of
appeals sustained an ad hoc "balancing" approach that allows a court
to dispense with exhaustion if necessary to achieve what the court
deems to be a "just result" (Pet. App. 13a).  The court further held
that the explicit 60-day filing requirement may be ignored on a
class-wide basis whenever an interpretation of applicable regulations
contained in internal memoranda later turns out to have been
erroneous.

   The flagrant disregard for the "final decision" and 60-day filing
requirements in 42 U.S.C. 405(g) exhibited by the jurisdictional
holdings in this and other massive class actions under the Social
Security disability programs /3/ threatens to make chaos of the
administrative mechanism established by the Act and implementing
regulations for the orderly processing of millions of claims annually.
 Congress and the Secretary have established reasonable procedural
requirements that must be followed in order for an individual to
obtain administrative and judicial review of his claim, and each
claimant is personally informed at each state what those requirements
are.  The review process can function in the fair and efficient manner
Congress intended only if those procedural rules are respected by the
courts.

   By contrast, the adjudicatory system would break down -- and the
courts would be flooded with cases seeking peremptory judicial
intervention -- if a claimant could obtain piecemeal interlocutory
review every time he disagreed with the manner in which a particular
issue was addressed at a preliminary stage of the administrative
review process.  Similarly, the repose that is established whenever a
claimant fails to seek further review within 60 days would be fatally
undermined if the courts could excuse that procedural default months
or years later, as the courts below did in this case.  These
consequences are particularly intolerable when the courts ignore the
controlling procedural rules in class actions involving thousands of
claimants, most of whom had long since abandoned their own individual
claims.  As this Court recently observed (Baldwin County Welcome
Center v. Brown, No. 83-181 (Apr. 16, 1984), slip op. 5):

         Procedural requirements established by Congress for gaining
      access to the federal courts are not to be disregarded by courts
      out of a vage sympathy for particular litigants.  As we stated
      in Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980), "(I)n the
      long run, experience teaches that strict adherence to the
      procedural requirements specified by the legislature is the best
      guarantee of evenhanded administration of the law."

The court of appeals failed to respect that admonition here.

 I. THERE IS NO RIGHT OF JUDICIAL REVIEW UNDER 42 U.S.C. 405(g) PRIOR
TO FULL EXHAUSTION OF ADMINISTRATIVE REMEDIES UNLESS THE CLAIMANT
RAISES AN ISSUE FALLING WITHIN THE NARROW EXCEPTION FOR WHOLLY
"COOLATERAL" MATTERS

   Under 42 U.S.C. 405(g), an individual may obtain judicial review
only "after (the) final decision of the Secretary made after a hearing
to which he was a party." This Court has held that the existence of
such a "final decision" is "central to the requisite grant of
subject-matter jurisdiction." Weinberger v. Salfi, 422 U.S. 749, 764
(1975);  accord Heckler v. Ringer, No. 82-1772 (May 14, 1984), slip
op. 14.  For this reason and because the "final decision" requirement
is an explicit limitation on Congress's waiver of sovereign immunity,
compliance with that requirement is a "statutorily specified
jurisdictional prerequisite" to suit that may not be dispensed with by
a court.  Salfi, 422 U.S. at 766.  Comapre Lehman v. Nakshian, 453
U.S. 156, 160, (1981)

   The named respondents brought this suit on behalf of a class of
Social Security disability claimants in New York to challenge the
state agency's decisions that their mental impairments did not render
them disabled within the meaning of the Social Security Act.
Respondents contend that in rendering those decisions, the state
agency misapplied the regulations promulgated by the Secretary to
implement the statutory definition of the term "disability." However,
the Act and implementing regulations unambiguously required that each
individual class member first request an ALJ and the Appeals Council
to correct any errors Committed by the state agency before requesting
a court to do so.

 A. Only a Decision By The Appeals Council Is a Final Decision" Of The
Secretary On The Individual's Claim For Benefits

   1. Congress has not prescribed in detail when a decision of the
Secretary should be regarded as "final" for purposes of judicial
review.  It has, however, imposed one critical precondition:  Section
405(g) provides that a decision is "final" only if it was rendered
"after a hearing." To be sure, the Court held in Salfi that the
Secretary may dispense with the hearing requirement under 42 U.S.C.
405(b) and deem an otherwise interlocutory denial of the claim for
benefits at the reconsideration stage as her "final decision" in
certain limited circumstances.  422 U.S. at 765-767;  see note 4,
infra.  But where the Secretary has not concluded that a hearing on
the claim is unnecessary, the phrase "after a hearing" in 42 U.S.C.
405(g) makes clear that any factual issues must be definitively
resolved and the law must be definitively applied by the Secretary
before judicial review is available.  In other words, Congress has
provided for judicial review only of the Secretary's final
administrative judgment in the case.

   This is the interpretation that has been given to the identical
term "final decisions" in 28 U.S.C. 1291, which confers jurisdiction
on the courts of appeals.  Under Section 1291, a "final decision" of
the district court is one "disposing of the whole case, and
adjudicating all rights" -- "one which ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment." Catlin v. United States, 324 U.S. 229, 233 (1945);
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981).
Compare Bell v. New Jersey 461 U.S. 773, 779 (1983).  That was settled
interpretation of the term "final decision" in the predecessor to 28
U.S.C. 1291 (see 28 U.S.C. (1934 ed) 225) when 42 U.S.C. 405(g) was
enacted in 1939 (Act of Aug. 10, 1939, ch. 666, Section 201, 53 Stat.
1370-1371).  See Berman v. United States, 302 U.S. 211, 212-213
(1937);  Cobbledick v. United States 309 U.S. 323, 324-326 (1940).  It
is reasonable to presume that when Congress used the familiar term
"final decision" in Section 405(g), it intended the term to be given a
parallel construction in defining the district courts' jurisdiction to
review the Secretary's decisions under the Social Security Act.
Lindahl v. OPM, No. 83-5954 (Mar. 20, 1985), slip op. 12 & n.15;
Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378-382
(1982).  Accordingly it is only the Secretary's order that finally
disposes of the claim at the administrative level that is subject to
judicial review under 42 U.S.C. 405(g)-- at least in the absence of a
wholly collateral issue that is subject to immediate judicial review
under the rationale of Eldridge and Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 545-547 (1949).  See pages 35-39, infra.

   2. There can be no doubt about what constitutes the Secretary's
final judgment on a claim for benefits under the administrative review
procedure that Congress and the Secretary have established.  Except
for the condition that judicial review is available only "after a
hearing," Congress has "left to the Secretary to flesh out by
regulation" what constitutes the "final decision" that terminates all
administrative proceedings on a particular claim and triggers the
right of judicial review.  Salfi, 422 U.S. at 766 & n.9.  The
statutory scheme is thus one in which the Secretary may specify such
requirements for exhaustion as (s)he deems serve (her) own interests
in effective and efficient administration" (ibid.).  Accord Ringer,
slip op. 2-3, 16;  Eldridge 424 U.S. at 330.

   Consistent with these principles and "(p)ursuant to her rulemaking
authority (under 42 U.S.C. 405(a)), the Secretary has provided that a
"final decision" is rendered on a * * * claim only after the
individual claimant has pressed his claim through all designated
levels of administrative review" (Ringer, slip op. 2 (footnote
omitted);  see also Salfi, 422 U.S. at 765) -- i.e., only after the
Appeals Council has either denied the claimant's request for review or
granted that request and issued its own decision.  20 C.F.R.
404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481.  /4/ This
requirement has been embodied in the regulations governing review of
Social Security claims since 42 U.S.C. 405(g) was enacted;  /5/ and it
was in effect when Congress enacted the Title II disability program in
1954, and 1956 and the SSI program in 1972.  /6/ Congress's express
directive that a disability claimant under those programs may obtain
judicial review "as is provided in section 405(g)" (see 42 U.S.C.
421(d), 1383(c)(3) therefore constituted a ratification of the
requirement that an Appeals Council decision be obtained prior to
judicial review and clear authorization for the Secretary to apply the
same requirement under the disability and SSI programs.  Lindahl, slip
op. 12 & n.15;  Haig v. Agee, 453 U.S. 280, 297-301 (1981).

   3. Congress has thoroughly studies the claims adjudication process
under the Social Security disability programs on numerous occasions in
the decade since Salfi was decided, and it has revised the procedures
at several stages of the administrative review process.  See Day, slip
op. 8-14.  But in doing so, Congress repeatedly has stressed the
importance of the ALJ hearing stage (id. at 8-9, 11, 13), and it has
left intact the fundamental requirement under Section 405(g) and Salfi
that the claimant obtain a decision from the ALJ and the Appeals
Council before seeking judicial review.  Compare Merrill Lynch, 456
U.S. at 381-382.

   Significantly, when Congress determined on the basis of its
thorough assessment that certain disability claimants might experience
undue hardship as a result of the delay occasioned by the requirement
that they exhaust their administrative remedies, it fashioned a
specific solution to that problem.  Thus, Congress provided for the
payment of benefits pending the ALJ's decision to individuals who had
been receiving and perhaps dependent upon their Social Security
disability benefits, but who were subuseqently found by the state
agency, no longer to be disabled.  See page 5, supra.  In other
circumstances -- such as cases involving new applicants for disability
benefits -- Congress has continued to regard a retroactive award of
benefits at a subsequent stage of the administrative review process
(or on judicial review after exhaustion of administrative remedies) as
a fully adequate remedy for an erroneous initial denial of benefits.
See Eldridge, 424 U.S. at 339, 340.  In no event, however, has
Congress (unlike the court of appeals in this case) dispensed with the
exhaustion requirement altogether, and thereby permitted a claimant to
circumvent or ignore the orderly administrative procedures that it and
the Secretary have prescribed.

   Nor has this Court dispensed with the jurisdictional prerequisite
of an Appeals Council decision during the period that Congress has
closely scrutinized the Social Security programs.  To the contrary,
the Court reiterated the exhaustion principles of Salfi just two Terms
ago in Ringer (slip op. 13-16), and it specifically rejected the
contention that full exhaustion of administrative remedies should not
be required because the "'elderly, ill, and disabled citizens who
(sic) Congress intended to benefit from Social Security Act programs
actually have suffered financially as well as physically'" as a result
of the denial of their claims at the preliminary steps in the
administrative review process (slip op. 23, quoting Resp. Br. at 31).
The Court explained (Ringer, slip op. 23-24):

         In the best of all worlds, immediate judicial access for all
      of these parties might be desirable.  But Congress, in Section
      405(g) and Section 405(h), struck a different balance, refusing
      declaratory relief and requiring that administrative remedies be
      exhausted before judicial review of the Secretary's decisions
      takes place. * * * If the balance is to be struck anew, the
      decision must come from Congress and not from this Court.

   Only five months after Ringer was decided, Congress enacted the
Social Security Disability Benefits Reform Act of 1984, which made
comprehensive revisions in the disability programs.  Pub. L. No.
98-460, 98 Stat. 1794 et seq.  The Senate Report on that Act contains
an extensive explanation of the jurisdictional principles under
Section 405(g) in connection with its discussion of the medical
improvement issue that ultimately was resolved by Section 2 of the
1984 Act (98 Stat. 1974).  See S. Rep. 98-466, 98th Cong., 2d Sess.
13-17(1984).  This Report reflects a clear understanding that the
exhaustion principles of Salfi and Ringer apply fully to the
disability programs and require an Appeals Council decision as a
prerequisite to judicial review.  S. Rep. 98-466, supra, at 15.  /7/
But although this Court had made clear in Ringer that any modification
of those principles "must come from Congress and not from this Court"
(slip op. 23-24).  Congress did not include in the 1984 Act any
amendment of the "final decision" requirement in Section 405(g).  /8/

 B. The Court Of Appeals' Ruling Dispensing With Exhaustion Cannot Be
Reconciled With The "Final Decision" Requirement In 42 U.S.C. 405(g)

   The court of appeals in this case completely disregarded these
firmly established limitations on the exercise of subject matter
jurisdiction under 42 U.S.C. 405(g).  It instead held that a court may
grant a "judicial waiver" of the exhaustion requirement under a "more
general appraoch" that permits a court to "balanc(e)" what it believes
to be the "competing considerations" in order "to arrive at a just
result under the circumstances" (Pet. App. 13a).  The defects in this
holding are legion.

   1. All else aside, the court of appeals' ad hoc and standardless
"balancing" approach to the question of subject matter jurisdiction
under 42 U.S.C. 405(g) would be totally unworkable.  The existence of
jurisdiction must turn on the application of a "clear test" that can
be readily ascertained by litigants and readily applied by courts.
Heckler v. Edwards, No. 82-874 (Mar. 21, 1984), slip op. 6.  See also
Richardson-Merrell, Inc. v. Koller, No. 84-127 (June 17, 1985), slip
op. 14-15.  Nowhere is that attribute more essential than under the
massive Social Security programs, in which millions of claims for
benefits and thousands of actions for judicial review are filed
annually.  The rule that judicial review is available only after the
Appeals Council has issued a decision (at least in the absence of an
issue that satisfies the familiar three-part test for "collateral"
matters (see pages 35-39, infra))has furnished such a clear test since
the inception of the Social Security program.  By contrast, the court
of appeals' novel and unprecedented balancing test would introduce
broad uncertainty for claimants, SSA, the state agencies and the
courts.  It also would inevitably lead to a further proliferation of
the widespread litigation over threshold questions of jurisdiction
that has increasingly burdened the Social Security system and would
invite the very sort of "overly casual or permature judicial
intervention" in the administrative process that Congress intended to
prevent when it enacted the "final decision" requirement.  Ringer slip
op. 23.

   2. The more fundamental flaw in the court of appeals' ad hoc
balancing approach to the question of subject matter jurisdiction is
that it is flatly inconsistent with the text of the Act, implementing
regulations, and this Court's decision in Salfi and Ringer.
Respondents brought this suit to challenge the decisions made by the
state agency in reviewing the disability claims filed by the
individual class member.  Section 405(g) and implementing regulations
explicitly provide, however, that such preliminary determinations by
the state agency must be reviewed in the first instance by an ALJ in
HHS, in the course of the "hearing" required by Section 405(b).  See
42 U.S.C. 421(d), 1383b(a), 1383(c)(1);  pages 21-22, supra.  Judicial
review is available under 42 U.S.C. 405(g) only "after" that "hearing"
and only after the Appeals Council has rendered the "final decision"
on behalf of the Secretary.  That is what Section 405(g) expressly
requires, yet the court of appeals did not even mention these
statutory terms in its discussion of the exhaustion issue.  See Pet.
App. 12a-15a.

   Not only is the court of appeals' overall balancing approach
completely at odds with the explicit statutory finality requirement;
each of the factors the court weighed is independently one that
Congress has not left to the courts to consider:

   a. The court of appeals relied on its own view that exhaustion of
administrative remedies would be futile (Pet. App. 15a).  The court's
finding of futility was patently erroneous.  See pages 32-33, infra.
But however that may be, this Court explicitly held in Salfi that the
"final decision" requirement is a jurisdictional prerequisite that
"may not be dispensed with merely by a judicial conclusion of
futility" (422 U.S. at 766 (emphasis added)).  See also Ringer, slip
op. 15-16.

   b. The court of appeals also seemed to believe that it could
dispense with the exhaustion requirement because of its own assessment
that some unspecified number of the disability claimants in the class
might experience hardship as a result of what the court referred to as
the "ordeal of having to go through the administrative process" (Pet.
App. 14a).  The court of appeals arrogated to itself a judgment that
is not a court's to make.  It is Congress that establishes the
procedures to govern the administrative review of claims, determines
the subject matter jurisdiction of the lower federal courts, and
prescribes the conditions on the waiver of sovereign immunity.

   Congress surely was aware when it enacted the disability and SSI
programs that errors would occur at the preliminary states of the
multi-stage administrative review process and that some individual
claimants affected by those errors might experience hardship while
they sought administrative review and a retroactive award of benefits.
 But Congress chose not to provide for an "individualized
jurisdictional inquiry" (Coopers & Lybrand v. Livesay, 437 U.S. 463,
473 (1978) into the possible hardship that might be experienced by any
particular disability claimant if judicial review were not available
before the Appeals Council acted.  Compare id. at 473-474, 476.
Virtually any disability claimant (or indeed any other claimant) could
make such allegations and the court then would be required either to
conduct a time-consuming factual inquiry into that question (compare
Richardson-Merrel, slip op. 14-15) or routinely to dispense with
exhaustion.

   Presumably for these reasons, when Congress established a system
for the administrative adjudication of Social Security claims in 1939
and later incorporated that system into the disability and SSI
programs, it necessarily legislated with the generality of cases in
mind and established uniform rules to govern all such cases.  Cf.
Eldridge, 424 U.S. at 344;  Richardson-Merrell, slip op. 14-15.  As
this Court recently observed, in adopting the rules it did "Congress
msut have felt that cases of individual hardship resulting from delays
in the administrative process had to be balanced against the potential
for overly casual or premature judicial intervention in an
administrative system that processes literally millions of claims
every year." Ringer, slip op. 23.  Furthermore, in response to
concerns about the possible hardship that might be occasioned by the
exhaustion requirement, Congress has provided for the payment of
benefits to certain claimants pending the ALJ's decision.  But in all
other instances, Congress has determined that a retroactive award of
benefits is the appropriate statutory remedy for the erroneous loss of
statutory benefits during the administrative appeals process.  The
court of appeals had no authority to disagree with that legislative
judgment by labelling a claimant's inability to receive statutory
benefits during the appeals process (much less the pursuit of the
appeals process itself) as "irreparable" injury that warrants
dispensing with the "final decision" requirement (Pet. App. 14a).  See
FTC v. Standard Oil Co., 449 U.S. 232, 244 (1980).

   c. The court of appeals also weighed in the balance its perception
that respondents were complaining of a "procedural irregularity"
rather than "substantive standards of eligibility" and that an award
of benefits by an ALJ or the Appeals Council would not have vindicated
their interest in procedural regularity.  The court believed that this
case was distinguishable from Ringer in this respect.  Pet. App.
14a-15a.

   In fact, however, this case is indistinguishable from Ringer.
There, as here, the plaintiffs challenged instructions that were
communicated by HHS to the entity responsible for adjudicating claims
at the preliminary stages of the administrative review process, but
that did not bind the ALJs and Appeals Council.  Slip op. 3-4.  There,
as here, the plaintiffs contended that the instructions created a
conclusive presumption of ineligibility, thereby depriving claimants
of an individualized assessment of their eligibility.  Id. at 8, 10,
13, 15.  And there, as here, the plaintiffs sought to characterize
their suit as a challenge only to a "procedural" irregularity rather
than an actual claim for benefits and they argued that an award of
benefits by the ALJ or the Appeals Council would not vindicate their
interest in procedural regularity.  Id. at 7, 9, 10-11.  The Court
nevertheless held that full exhaustion of administrative remedies was
required.  Id. at 14-16;  see also id. at 2 (Stevens, J., concurring
and dissenting).  Ringer thus squarely controls this case.

   Furthermore, the Court in Ringer expressly rejected the notion that
the jurisdictional rules governing Social Security cases are
inapplicable "simply because a claim somehow can be be construed as
"procedural'" (slip op. 11).  Many issues that arise in the
adjudication of disability claims -- e.g., a state agency's or ALJ's
determination regarding the probative value of evidence, the
allocation of the burden of proof, the use of a presumption or other
evidentiary rule, etc. -- can be characterized as "procedural" in
nature.  But that label does not detract from the fact that the state
agency' or ALJ's disposition of such issues pertains to the decision
on the merits of whether the individual is disabled.  Such issues
therefore are subject to review when the merits of the claim are
subject to review -- after the Appeals Council has ruled (assuming
that the error has not been corrected or been rendered moot by that
time).  See FTC v. Standard Oil Co., 449 U.S. at 244 n.11, 246.

   3. The court of appeals' holding that the class members were not
required to seek review by an ALJ and the Appeals Council also is
directly contrary to the purposes underlying the jurisdictional
prerequisite of a "final decision." The exhaustion requirement allows
SSA "an opportunity to correct its own errors, to afford the parties
and the courts the benefit of its experience and expertise, * * * to
compile a record which is adequate for judicial review" (422 U.S. at
765), and to ensure that "the claim is neither otherwise invalid nor
cognizable under a different section of the Act" (ibid.).  See also
Ringer, slip op. 15-16 & n.12.  These purposes plainly would have been
served by requiring exhaustion in this case.

   The Commissioner of Social Security already had applied his
"experience and expertise" and taken decisive steps to correct the
apparent error by SSA personnel and the state agency before this suit
even was filed.  See pages 9-10, supra.  The intervention by the
district court more than a year later therefore was completely
unnecessary.  Moreover, the internal SSA memoranda reflecting the
interpretation of the regulations that respondents challenged
concededly were not binding upon the ALJs or the Appeals Council.  See
pages 4-5, supra.  As a result, individual claimants who received an
adverse decision from the state agency were not prevented from
obtaining a full consideration of their RFC or a favorable decision on
the merits from an ALJ or the Appeals Council.  Compare Ringer, slip
op. 15.  In fact, because the initial determination and
reconsideration of a claim are primarily the responsibilitiy of the
state agency, it is the ALJ and Appeal Council stages of the review
process that afford the Secretary her principal opportunity to apply
her "experience and expertise" in the actual adjudication of a
particular claim and to correct any errors that might have been
committed by the state agency.

   The ALJ hearing also affords the Secretary her fullest opportunity
"to comply a record which is adequate for judicial review" (Salfi, 422
U.S. at 765).  The ALJ has an obligation to "look() fully into the
issues," and he may secure additional evidence or raise an resolve new
legal issues.  20 C.F.R. 404.944, 404.946, 416.1444, 416.1446.  See
Campbell, 461 U.S. at 469 n.12;  id. at 471 (Brennan, J., concurring);
 id. at 473 (Marshall, J., dissenting).  As a result, the ALJ might
determine that the claim for benefits should be either allowed or
disallowed for reasons that were not identified or adequately explored
at the state agency level.  Salfi, 422 U.S. at 762, 765;  Eldridge,
424 U.S. at 331-332;  Ringer, slip op. 16 n.12.  Centralized review by
the Appeals Council in turn serves to ensure that the complex
statutory and regulatory provisions are correctly and uniformly
applied by the approximately 800 ALJs.  For these reasons, the ALJs
and Appeals Council perform critical oversight functions even where it
might appear to the claimant or a court that there is no particular
reason to pursue an administrative appeal.

   Finally, even if the ALJ and Appeals Council do not rule in the
claimant's favor, the issues may be narrowed or clarified as a result
of their scrutiny, and the record they have compiled may substantially
facilitate judicial review.  As a result, if the court were to
conclude that an error of law was committed in the administrative
proceedings, it might be in a position to reverse the ALJ's or Appeals
Council's decision and direct an award of benefits, rather than remand
for further proceedings;  and if a remand is required, the existence
of a complete record from the initial proceedings may render it
unnecessary to conduct another full-blown evidentiary hearing.

   The various purposes served by exhaustion are not mere
abstractions.  The experiece of the eight individual named plaintiffs,
most of whom conscientiously pursued their administrative remedies in
the same manner.  Two of the eight named plaintiffs were found by an
ALJ to be disabled to step three of the sequential evaluation process
because their impairments were sufficiently severe to meet the
listings of serious impairments (J.A. 97-98 (Jane Doe II);  J.A.
145-146 (Richard Roe IV)).  That determination made it unnecessary for
the ALJ to assess their RFC.  See pages 7-8, supra.  A third plaintiff
who had failed to pursue his administrative remedies beyond the
reconsideration stage on his first application also was found to be
disabled after he filed a second application (J.A. 22-23 (Richard Roe
III)).  And the remaining five named individual plaintiffs all were
denied benefits on a basis other than the application of a presumption
that a claimant whose mental impairment does not meet the listings has
a sufficient RFC to perform unskilled work.  /9/ If this experience is
typical, there is no reason to believe that an ALJ would have relied
on the challenged presumption to deny the claims of any of the
thousands of individual claimants who elected not to request an ALJ to
review the state agency's denial of their claim and who therefore were
improperly included as members of the class in this case.  /10/

   4. The court of appeals' decision dispensing with the exhaustion
requirement is even more egregiously wrong when its actual impact on
the claims of the unnamed class members is considered.  The court of
appeals analyzed the exhaustion issue in terms of a claimant's
interest in avoiding the administrative process in order to expedite
judicial review, stressing what it believed would be the irreparable
injury that would result if they were required to undergo the "ordeal"
of "travel(ling) through the administrative maze as a prerequisite of
a judicial hearing" (Pet. App. 14a-15a).  However, the image the court
attempted to convey of claimants who were diligently pursuing their
claims and simply transferred their claims from an administrative to a
judicial forum in order to obtain immediate relief bears no relation
to the actions of the vast majority of the unnamed class members in
this case who did not exhaust their administrative remedies.

   Each of those class members had his own claim for benefits pending
before the state agency (or an ALJ) at some time after April 1, 1980
(Pet. App. 36a), and each received a notice informing him that he had
60 days within which to seek further administrative review.  Yet each
of the class members involved declined to do so.  None personally
sought judicial review, thereby exhibiting no interest in an expedited
determination of his claim.  Nor is their any indication that any
class member even knew of this lawsuit, much less that he stopped
pursuing his administrative remedies on the belief that his claim had
effectively been transferred to the district court by the filing of
this class action.  For all that appears, the thousands of unnamed
class members involved simply abandoned their claims for benefits.
Perhaps many accepted the correctness of the state agency's decision
that they were not disabled within the meaning of the Social Security
Act, or at least concluded that the question was sufficiently
debatable so as not to be worth challenging;  perhaps others had
recovered from their impairments or found work notwithstanding them.
But whatever the reasons, the failure by any unnamed class member to
request further review within 60 days, after being personally notified
of his right to do so, must be regarded as a deliberate acceptance of
the consequence that the administrative decision denying his own claim
for benefits would thereby become binding.

   Jurisdictional problems to one side, there are no equitable
considerations that could justify a court order requiring the
Secretary to divert her scarce resources from the adjudication of the
claims of other persons who have pursued their administrative remedies
and to devote them instead to the reopening of thousands of cases that
were knowingly abandoned by the individual claimants involved.  See
Baldwin County Welcome Center, slip op. 5.  In fact, those claimants
have not even sought that relief, either from the Secretary or the
court.  It was the handful of named plaintiffs in this case who sought
to require the Secretary to reopen those other claims.  /11/ For these
reasons, when a court disregards the exhaustion requirement in a class
action, the result is a sweeping disruption of the repose of
previously settled claims and a wholly unwarranted judicial intrusion
into the orderly administration of the Social Security programs.

 C. This Case Does Not Fall Within The Narrow Exception Permitting
Judicial Review Of Entirely Collateral Matters Prior To The Appeals
Council's Decision

   As we have demonstrated, the general rule is that a district court
does not have jurisdiction under 42 U.S.C. 405(g) unless the Appeals
Council has fully disposed of the individual's claim for benefits on
the merits.  That requirement obviously was not met on a class-wide
basis here.  This Court has recognized only one narrow exception to
the exhaustion rule, which is essentially identical to the "collateral
order" exception to the final judgment rule under 28 U.S.C. 1291.  See
Cohen v. Beneficial Industrial Loan Corp., supra.  However, that
exception applies only to orders "affecting rights that will be
irretrievably lost in the absence of an immediate appeal"
(Richardson-Merrell, slip op. 6), and it likewise has no application
in this case.

   The exception for "collateral" issues was first recognized by this
Court in a Social Security case in Mathews v. Eldridge, supra.  See
424 U.S. at 330-332.  There, the claimant asserted a due process right
under Goldberg v. Kelly, 397 U.S. 254 (1970), to an evidentiary
hearing before his disability benefits were terminated.  The Court
relied on several factors in holding that the district court had
jurisdiction under 42 U.S.C. 405(g) to decide that legal issue, even
though the claimant had not presented his constitutional argument to
the Secretary or obtained an Appeals Council decision.

   First, it was "unrealistic to expect that the Secretary would
consider substantial changes in the current administrative review
system at the behest of a single aid recipient raising a
constitutional challenge in an adjudicatory context." 424 U.S. at 330.
 Second, the claimant's constitutional contention that his benefits
could not be terminated without a prior hearing was "entirely
collateral to his substantive claim of entitlement." Ibid.  Third, the
claimant's assertion of a constitutional right to a predeprivation
hearing necessarily "rest(ed) on the proposition that full relief
cannot be obtained at a post-deprivation hearing," and the claimant
"ha(d) raised at least a colorable claim that because of his physical
condition and dependency upon the disability benefits, an erroneous
termination would damage him in a way not recompensable through
retroactive payments" (id. at 331 (footnote omitted)).  The Court
accordingly determined that, unlike in Salfi, the grant or denial of
Eldridge's substantive claim at a subsequent stage of the
administrative process or on judicial review "would not answer his
constitutional challenge" (id. at 331-332).  The Court concluded, in
other words, that the asserted constitutional right to a
predeprivation hearing would be irretrievably lost and effectively
irremediable if judicial review were available only after the
Secretary's final decision on his claim for benefits, which would
occur only after the payment of benefits had terminated.

   The three factors just discussed precisely parallel the three
conditions that an order of a district court must satisy to fall
within the "collateral order" exception to the final judgment rule
under 28 U.S.C. 1291.  Such an order "must 'conclusively determine the
disputed question,' 'resolve an improtant issue completely separate
from the merits of the action,' and 'be effectively unreviewable on
appeal from a final judgment.'" Richardson-Merrell, slip op. 6
(quoting Coopers & Lybrand, 437 U.S. at 468).  The Court's observation
in Eldridge that there was no realistic possibility that the Secretary
would revise the existing administrative review system at the behest
of a single claimant was essentially the equivalent of a finding that
the Secretary had "conclusively determine(d) the disputed question" of
whether Eldridge would be afforded a pretermination hearing.  The
Court's holding that Eldridge's assertion of a constitutional right to
such a hearing was "entirely collateral to his substantive claim of
entitlement" was but another way of saying that it was "completely
separate from the merits of the action." And the Court's conclusion
(in light of the purposes of a deprivation hearing) that Eldridge had
raised at least a colorable claim that "an erroneous termination would
damage him in a way not recompensable through retroactive payments"
was the equivalent of a determination that his constitutional
contention would be "effectively unreviewable on appeal from a final
judgment" by the Appeals Council.  See Johnson v. Heckler, no. 85-1254
(7th Cir. Oct 30, 1985), slip op. 3 (Easterbrook, J., dissenting from
denial of rehearing en banc).

   The congruence between the analysis in Eldridge and the collateral
order doctrine of Cohen is no accident.  The Court in Eldridge
expressly relied upon Cohen in support of its jurisdictional holding.
See 424 U.S. at 331 n.11.  An in Bell v. New Jersey, supra, the Court
reaffirmed the parallel between Eldridge and Cohen, observing that
each creates an exception only for an "appealable collateral order."
461 U.S. at 778-779.  /12/ Because 42 U.S.C. 405(g) and 28 U.S.C. 1291
speak in identical terms and confer jurisdiction to review only "final
decisions," it is natural that the collateral order exception should
have the same scope under both statutes.

   It is well settled that an order must satisfy all three of the
conditions just discussed to fall within the collateral order
exception to the final judgment rule.  Richardson-Merrell, slip op. 6;
 Mitchell v. Forsyth, No. 84-335 (June 19, 1985), slip op. 11.  The
issue in Eldridge concerning the right to a pretermination hearing did
satisfy all three conditions.  In this case, by contrast, respondents'
challenge to the state agency's alleged use of a presumption of any
ability to perform substantial gainful activity plainly satisfied none
of those conditions.

   First, the state agency did not "conclusively determine" whether
any individual class member's claim would be disposed of by
utilization of such a presumption and without an individualized
assessment of his RFC, because the ALJ and Appeals Courncil concededly
were not bound to follow that approach.  Compare Ringer, slip op. 4,
15-16 & n.12.  Second, respondents' challenge to the state agency's
application of the regulations implementing the statutory definition
of disability was not "entirely collateral" to (or "completely
separate" from) any class member's claim for benefits.  The court of
appeals acknowledged as much, grudgingly conceding that respondents'
contentions were "somewhat interwined" with their demands for benefits
(Pet. App. 14a).  This defect alone was sufficient to defeat
jurisdiction under the rationale of Eldridge and Cohen.  See Hyatt v.
Heckler, 757 F.2d 1455, 1460 (4th Cir. 1985), petition for cert.
pending No. 85-474.

   Finally, respondents' contentions were not "effectively
unreviewable on appeal from a final judgment." If the ALJ and Appeals
Council were to employ the challenged presumption and fail to make a
sufficiently individualized assessment of a class member's RFC, that
defect (like any other error in the administrative determination of
disability) would be fully reviewable in court after the Appeals
Council had ruled.  Unlike the asserted constitutional right to a
predeprivation hearing involved in Eldridge, the statutory issue
respondents have raised is not one that "will be irretrievably lost in
the absence of an immediate appeal." Richardson-Merrell, slip op. 6;
see Eldridge, 424 U.S. at 331-332 & n.11.  See also Ringer, slip op.
14-15;  Johnson v. Heckler, slip op.3 (Easterbrook, J., dissenting).
But see Johnson v. Heckler, 769 F.2d 1202, 1205-1206 (7th Cir. 1985);
Polaski v. Heckler, 751 F.2d 943, 951-954 (8th Cir. 1984), petition
for cert. pending No. 85-55.

   For the foregoing reasons, respondents cannot rely on the
collateral order rationale of Eldridge and Cohen to avoid the
consequences of the unnamed class members' abandonment of their claims
before they obtained a final decision by the appeals Council.  A
contrary holding would "transform the limited exception carved out in
(Eldridge) into a license for broad disregard of the finality rule
imposed by Congress in (42 U.S.C. 405(g)).'" Richardson-Merrell, slip
op. 16 (quoting Firestone Tires & Rubber Co. v. Risjord, 449 U.S. at
378 (brackets added)).

 II. A CLAIMANT MUST SEEK JUDICIAL REVIEW UNDER 42 U.S.C. 405(g)
WITHIN 60 DAYS OF THE SECRETARY'S FINAL DECISION UNLESS THE SECRETARY
HAS EXTENDED THAT FILING PERIOD

   The district court, affirmed by the court of appeals included in
theclass all covered individuals who received an adverse determination
by the New York state agency on or after April 1, 1980, almost three
years before this suit was filed in February 1983 (Pet. App. 65a).
This aspect of the class certification is directly contrary to the
requirement in 42 U.S.C. 405(g) that a claimant must seek judicial
review of the Secretary's final decision "within sixty days after the
mailing to him of notice of such decision or within such further time
as the Secretary may allow."

   The Secretary has promulgated regulations establishing a procedure
for the exercise of her authority under 42 U.S.C. 405 (g) to extend
the filing period in appropriate circumstances.  Under those
regulations, the claimant must file a written request with SSA
explaining why he did not seek judicial review within 60 days.  SSA
then will extend the filing time if it determines that the claimant
has established "good cause" for missing the deadline.  20 C.F.R.
404.982, 404.911, 416.1482, 416.1411.  /13/ The regulations describe
as examples of "good cause" the failure to receive notice of the
administrative decision and the convenyance of SSA of incorrect or
incomplete information about "when and how * * * to file a civil
suit." 20 C.F.R. 404.911(b), 416.1411(b).  There is no indication that
any of the class members who received a final decision of the
Secretary more than 60 days before this suit was filed ever submitted
an extension request to the Secretary.  The claims of those
individuals therefore remain time-barred, and they were not properly
included in the class.

 A. The District Court Had No Authority To Extend The 60-day Filing
Period in 42 U.S.C. 405(g)

   Despite the failure of the time-barred class members to invoke the
procedure established by Congress and the Secretary to extend the
filing period under 42 U.S.C. 405(g), the court of appeals sustained
the exercise of jurisdiction over their claims.  The court of appeals
believed that a court has independent authority to extend the 60-day
filing period, and in this case it deemed the running of that period
to have been "effectively tolled" on a state-wide basis during the
time that the challenged presumption concerning RFC was "operative but
undisclosed" (Pet. App. 17a-18a).  This holding is plainly wrong.

 1. The Condition That A Suit Be Filed Within 60 Days Is an Explicit
Limitation On The District Court's Jurisdiction Under 42 U.S.C. 405(g)

   The district court exceeded its jurisdiction by granting relief to
individuals whose claims were finally denied by the Secretary more
than 60 days before this class action was filed. "'(The) United
States, as sovereign, "is immune from suite save as it consents to be
sued . . . and the terms of its consent to be sued in any court define
that court's jurisdiction to entertain the suit."'" Lehman v.
Nakshian, 453 U.S. at 160 (quoting United States v. Testan, 424 U.S.
392, 399 )1976), and United States v. Sherwood, 312 U.S. 584, 586
(1941)).  Consistent with these principles, the Court held in Salfi
that the "final decision" requirement in 42 U.S.C. 405(g) is "central
to the requisite grant of subject-matter jurisdiction" (422 U.S. at
764) and a "statutorily specified jurisdictional prerequisite" to suit
that may not be dispensed with by a court (id. at 766).  See also
Ringer , slip op. 14.

   The requirement in 42 U.S.C. 405(g) that an action for judicial
review be commenced within 60 days of "such decision" appears in the
same sentence as the "final decision" requirement.  The most natural
reading of Section 405(g) therefore is that the 60-day requirement
likewise is a "statutorily specified jurisdictional prerequisite" to
suit that may not be dispensed with by a court.  Hunt v. Schweiker,
685 F.2d 121, 123 (4th Cir. 1982).  See also Hyatt v. Heckler, 757
F.2d 1455, 1460-1461 (4th Cir. 1985), petition for cert. pending No.
85-474;  Biron v. Harris, 668 F.2d 259, 261 (6th Cir. 1982).  But see
Minnesota Mental Health, 720 F.2d at 973 n.19;  Hatchell v. Heckler,
708 F.2d 578, 580 n.1 (11th Cir. 1983).  A court therefore has no
jurisdiction to entertain an action brought by (or on behalf of) any
individual who has not compiled with the 60-day filing requirement.
Heckler v. Lopez, 464 U.S. 879, 881 (1983) (Stevens, J., dissenting in
part).  As Justice Stevens explained (ibid):

      These persons' right to seek administrative or judicial review
      of their * * * decisions had expired, and they could obtain
      benefits only be requesting that the Secretary reopen their
      cases.  However, the District Court had no jurisdiction to
      review the Secretary's refusal to reopen these cases.  Califano
      v. Sanders, 430 U.S. 99 (1977).  Hence, the District Court had
      no jurisdiction over these persons and should not have granted
      them relief. * * *.

   This view of the 60-day filing requirement in 42 U.S.C. 405(g) is
consistent with the interpretation of other statutes that waive the
government's sovereign immunity but limit the time within which a suit
may be brought.  The seminal case is Finn v. United States, 123 U.S.
227, 232-233 (1887), in which the Court held that the failure by the
attorney for the government to plead as a defense the six-year
limitation on the bringing of an action against the United States in
the Court of Claims could not effect a waiver of that limitation.  The
Court noted that the government had not conferred authority on its
officers to waive that limitation.  123 U.S. at 233.  Accordingly, it
held that "(s)ince the Government is not liable to be sued, as of
right, by any claimant, and since it has assented to a judgment being
rendered against it only in certain classes of cases, brought within a
prescribed period" (ibid.), it was the duty of the court to dismiss
the action if it was untimely (id. at 232).  See also United States v.
Wardwell, 172 U.S. 48, 52 (1898) (the provision "is not merely a
statute of liminations but also judicial in its nature, and limiting
the cases of which the Court of Claims can take cognizance").  In
1938, the Court applied the same rule to a suit brought in district
court under the Tucker Act (Act of Mar. 3, 1887, ch. 359, 24 Stat. 505
et. seq.), where the attorney for the government again had failed to
plead the six-year bar.  Munro v. United States, 303 U.S. 36, 41
(1938).

   It was against this background that Congress in 1939 enacted
Section 405(g) and thereby waived the government's immunity to suits
arising under the Social Security Act.  Because Munro had been decided
only a year earlier and because Section 405(g) authorizes a suit
against the government to recover money from the Treasury, it is
reasonable to assume that Congress likewise intended the 60-day filing
requirement in Section 405(g) to state a jurisdictional limitation.

   The conclusion that Section 405(g) should be so construed is
reinforced by the fact that, as respondents concede (Br. in opp. 22),
other statutory limitations on bringing suit against the government
uniformly have been understood to be conditions on the waiver of
sovereign immunity and therefore jurisdictional prerequisites to suit.
 Under Finn and Munro,the six-year limitation in 28 U.S.C. 2501 on the
bringing of suits in the Court of Claims (now the Claims Court1 and
the parallel limitation in 28 U.S.C. 2401(a), which is applicable to
"every civil action" brought against the United States in district
court, of course are jurisdictional in nature.  See also Soriano v.
United States, 352 U.S. 270, 275-276 (1957).  The two-year limitation
in 28 U.S.C. 2401(b) for suits under the Federal Tort Claims Act (FTCA
and the 12-year limitation in 28 U.S.C. 2409a(f) for suits under the
Quite Title Act also have been recognized as conditions on the waiver
of sovereign immunity.  See United States v. Kubrick, 444 U.S. 111,
117-118 (1979);  Block v. North Dakota, 461 U.S. 273, 287 (1983)).

   Especially in light of this broad acceptance of the settled
principle that such limitations are conditions on the waiver of
sovereign immunity and are therefore jurisdictional in nature, "(t)he
appropriate inquiry * * * is whether Congress, clearly and
unequivocally departed from its usual practice in this area" (Lehman
v. Nakshian, 453 U.S. at 162) with respect to Social Security cases
brought under 42 U.S.C. 405(g).  See Soriano, 352 U.S. at 275-276.
Nothing in the text of the 1939 amendments to the Social Security Act
or their sparse legislative history suggest that it did.  To the
contrary, the second sentence of Section 405(h) expressly states that
"(n)o findings of fact or decision of the Secretary shall be reviewed
by any * * * tribunal * * * except as herein provided" -- by which
Congress meant "except as provided in subsection (g) (of Section 405)"
(S. Rep. 734, 76th Cong., 1st Sess. 52 (1939);  H.R. Rep. 728, 76th
Cong. 1st Sess. 43-44 (1939)).  This preclusion of review underscores
the fundamental importance Congress attached to the conditions on the
grant of subject matter jurisdiction in Section 405(g).  Similarly,
the Senate Report on the 1984 Disability Act, in its discussion of the
60-day filing requirement, cited with approval the Fourth Circuit's
holding in Hunt v. Schweiker, supra, that this provision is
jurisdictional in nature and is not subject to tolling.  S. Rep.
98-466, supra, at 17.

   We recognize that in Salfi and Eldridge, the Court described the
60-day filing requirement as a "statute of limitations" that was
waived by the Secretary because it had not been raised in district
court.  422 U.S. at 763-764;  424 U.S. at 328 n.9.  However, the
nature of the 60-day filing period was not addressed by the parties in
either case, and the Court's statements were dicta because in each
instance the claimant had sought judicial review within 60 days of the
relevant administrative action.  App. at 1, 9, 17-20.  Weinberger v.
Salfi, No. 74-214 (1974 Term);  App. at 1-3, 14, Mathews v. Eldridge,
No. 74-204 (1974 Term).  The Court also did not refer in either
opinion to its prior holding in Finn and Munro that such a
prerequisite to suit is jurisdictional and is not subject to whatever
rules of waiver might apply to an ordinary statute-of-limitations
defense available to a private party.

   In any event, the dicta in Salfi nad Eldridge do not support the
decision in this case.  The court of appeals did not sustain the
district court's exercise of jurisdiction over the claims of the class
members who did not comply within the 60-day filing requirement on the
ground that the Secretary had failed to object in a timely fashion.
/14/ The court of appeals instead held that the district court could
grant relief even in the absence of any action by the Secretary
extending or waivering the 60-day filing period.  However, in the
absence of any such action by the Secretary that could be held to have
"allow(ed)" additional time under the dicta in Salfi and Eldridge,
those class members who received "final decisions" denying their
claims for benefits more than 60 days before this suit was filed
violated an explicit condition on the waiver of sovereign immunity in
42 U.S.C. 405(g).

 2. The Court Of Appeals Had No Authority To Extend The 60-day Filing
Period Even If It Is Not Strictly Jurisdictional In Nature

   The court of appeals' holding was clearly wrong even if, contrary
to our submission above, the 60-day filing requirement is not regarded
as jurisdictional in the strictest sense.  Statutorily mandated limits
on the time within which a suit may be brought against the government,
however they may be characterized, must be strictly construed and
enforced, and the courts are not authorized to fashion their own
tolling rules or to extend those time limits beyond what Congress has
permitted.  Sariano v. United States, 352 U.S. 270, 275-275 (1957);
United States v. Kubrick, 444 U.S. 111, 117-118 (1979).  Cf. United
States v. Boyle, No. 83-1266 (Jan. 9, 1985), slip op. 7-8.  The fact
that Congress expressly vested authority in the Secretary to extend
the 60-day filing period under 42 U.S.C. 405(g), but conferred no such
authority on the courts, strongly reinforces the conclusion that a
court has no independent authority to excuse noncompliance with the
60-day requirement under duplicative judicially fashioned tolling
rules.  pcompare Salfi, 422 U.S. at 766-767.  Cf. United States v.
Locke, No. 83-1394 (Apr. 1, 1985), slip op. 9 n.10.

   The way in which the court of appeals sought to avoid application
of the 60-day rule in this case is particularly objectionable, even
assuming that a court could excuse a particular claimant's default in
certain special circumstances.  The court of appeals held that the
running of the 60-day period was "effectively tolled" throughout New
York State, from April 1, 1980 until this suit was filed on February
8, 1983, because during that time the challenged presumption
concerning RFC was "undisclosed" (Pet. App. 18a).  This holding
constitutes an intolerable and wholly unwarranted judicial
interference with the orderly procedure for the administrative review
of Social Security claims.  It apparently would have the effect of
retroactively tolling the running of the 60-day period for all
claimants in a particular state (or even throughout the Nation) who
received an adverse administrative decision based on an interpretation
of the Act or regulations that was contained in internal operating
instructions whenever that interpretation later turns out to have been
erroneous.  Such implementing instructions, which are not required to
be published in the Federal Register, are commonplace in the
administration of the Social Security Act.  The haphazard and sweeping
principle of "tolling" announced by the court of appeals therefore
"would frustrate the congressional purpose, plainly evidenced in
(Section 405(g)), * * * to forestall repetitive or belated litigation
of stale eligibility claims." Califano v. Sanders, 430 U.S. at 108.
The court of appeals disregarded its "duty * * * to respect that
choice" by Congress.  Ibid.

   The court of appeals conceded that the class members "knew of the
denial or loss of benefits" (Pet. App. 18a).  This of course is clear
from the fact that, under applicable procedures, an individual is
personally notified when his claim is denied at any stage of the
administrative review process that he must seek further review within
60 days;  and when a claim is denied by the Appeals Council, the
claimant is specifically notified that he must seek judicial review
within 60 days.  See, e.g., J.A. 83-84, 127, 157.  Compare Atkins v.
Parker, No. 83-1660 (June 4, 1985), slip op. 12, 15.  By the express
terms of 42 U.S.C. 405(g), the mailing of the latter notice to the
claimant triggers the running of the 60-day period within which to
file suit.  The court of appeals was not free to refashion the
statutory scheme by designating different operative dates.

   The court of appeals relied on a parallel it drew to when a cause
of action accrues" under the two-year limitations provision in the
FTCA (28 U.S.C. 2401(b)).  See Pet. App. 18a, citing Barrett v. United
States, 689 F.2d 324, 327-330 (2d Cir. 1982) (a FTCA case).  But
contrary to the court of appeals' belief, FTCA principles would not
support its unprecedented tolling rule even if they applied to this
case.  This Court held in United States v. Kubrick, supra, that a
claim "accrues" under the FTCA when the plaintiff has discovered both
his injury and its probable cause.  In this case, when each class
member received the notice of an administrative decision denying his
claim, he clearly knew of his "injury" (the denial of statutory
benefits), its "cause" )the adverse decision), and who caused it (the
Secretary, acting through SSA or the state agency).  Under 0FTCA
principles, the 60-day period would clearly begin to run at that
point, even if the claimant did not also know that the state agency
had relied on an erroneous interpretation of the regulations. Kubrick,
444 U.S. at 121-122.  There is no need to dwell further on the analogy
to Kubrick, however, because this case neither arose under the FTCA
nor required the court below to ascertain when the statutory cause of
action created by 42 U.S.C. 405(g) first "accrues." Congress specified
when that cause of action accures:  when notice of the "final
decision" of the Secretary is mailed to the claimant.  That
specification is controlling.

   The Court of appeals also seemed to believe that its tolling rule
could be supported in this case by labeling the alleged presumption
regarding RFC as "secretive" (Pet. app. 18a).  The apparent premise of
this holding -- that there was some sort of sinster practice or active
concealment by SSA -- is mistaken.  There is no indication that the
memoranda upon which the district court relied (id. at 41a) were
anything other than ordinary communications in the normal course of
agency business concerning an issue on which the personnel involved
were attempting in good faith to develop and articulate a policy.
Nothing about them indicates they were intended to be "secretive." To
the contrary, an agency of the State of New York -- one of the
plaintiffs in this case -- was responsible for making the RFC
determination, and it concededly had full knowledge of the
interpretation reflected in those memoranda.  However, erroneous that
interpretation may appear in hindsight, the documents purported to
interpret and apply the governing regulations and implementing forms
and instructions in the particular context of certain mental
impairments, not to establish a secret regime in deliberate
contravention of those materials.  Similarly, SSA quality reviews of
state agency decisions, upon which the district court also relied (id.
at 34a-36a, 39a-40a), are a regular part of SSA'S oversight
responsibility that are mandated by Congress (see 42 U.S.C. 421(c))
and are fully disclosed to the state agency.

   In any event, even if certain SSA personnel had deliberately
conveyed to the state agency an interpretation of the regulations they
knew to be incorrect, that factor clearly would not permit a court to
toll the running of the 60-day period.  The notice of the state
agency's decision still would have informed the claimant that he had
been found able to work (and therefore not to be disabled within the
meaning of the Act) and of his right to seek further administrative
review.  See, e.g., J.A. 60, 86-87, 91, 101-102, 104, 107.  There is
no reason to believe that any error made in reaching that conclusion
-- even a deliberate error -- would have posed an obstacle to the
claimant's ability to seek further adminsitrative review within 60
days if he disagreed with the state agency's express finding that he
could work, or to file suit under 42 U.S.C. 405(g) to challenge that
administrative determination if he had received an Appeals Council
decision.  Cf. INS v. Hibi, 414 U.S. 5 (1973).  But if an obstacle to
seeking further review somehow did result, the claimant presumably
could establish "good cause" for the Secretary to extend the 60-day
period or to reopen the adverse determination under the existing
administrative procedures.  See pages 6, 40 and note 13, supra.  The
court of appeals had no authority to supplant those procedures for
granting relief in individual cases of proven merit and to dispense
with the 60-day filing period on a class-wide basis.

 B. The 60-day Filing Requirement Cannot Be Avoided By Resort to
Mandamus Jurisdiction Under 28 U.S.C. 1361

   The court of appeals further held that even if the district court
did not have jurisdiction under 42 U.S.C. 405(g) to review those
individual "final decisions" that were rendered more than 60 days
before this usit was filed, it had authority under the mandamus
statute, 28 U.S.C. 1361, to review and order the reopening of those
decisions.  (Pet. App. 19a-20a).  This holding, too, was plainly
wrong.  The second sentence of 42 U.S.C. 405(h) provides that "(n)o
findings of facts or decision of the Secretary shall be reviewed by
any * * * tribunal * * * except as herein provided" -- i.e., except as
provided in 42 U.S.C. 405(g), subject to that Section's 60-day time
limit.  See page 44, supra. Section 405(h) thus expressly forecloses
the very circumvention of the 60-day rule that the court of appeals
countenanced in relying on the mandamus statute.

   This Court, however, previously has declined to decide whether
Section 405(h) entirely bars mandamus jurisdiction with respect to
matters affecting the Social Security program.  See, e.g., Ringer,
slip op. 12.  There likewise is no need to resolve that question here,
because the exercise of mandamus jurisdiction in this case is in any
event contrary to established law.

   The court of appeals conceded (Pet. App. 20a-21a n.7) that under
this Court's decision in Ringer, slip op. 12-13, the exhaustion
requirement embodied in the "final decision" language of 42 U.S.C.
405(g) cannot be circumvented by resort to mandamus jurisdiction.  It
necessarily follows that the 60-day filing requirement embodied in the
same sentence of Section 405(g) also cannot be avoided in this manner.
 Moreover, mandamus is not available where there is another adequate
remedy or where the defendant does not owe the plaintiff a clear
nondiscretionary duty.  Ringer, slip op. 13.  Here, the class members
involved had a fully adequate remedy under 42 U.S.C. 405(g);  they
simply failed to invoke it in a timely fashion.  Ringer, slip op. 13.
Furthermore, the Secretary's determination whether a particular
individual has the RFC to do unskilled work is itself a discretionary
decision (ibid.), and, in addition, the Secretary has no mandatory
duty to reopen the binding administrative decision of time-barred
class members in order to reevaluate each member's RFC.  See Califano
v. Sanders, supra.  /15/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   WILLIAM KANTER

   HOWARD S. SCHER

      Attorneys

   December, 1985

   /1/ The Secretary has not provided for a separate reconsideration
stage in disability cessation cases under Title XVI.  An SSI recipient
therefore is entitled to an ALJ hearing if he requests one within 60
days of the initial determination.  20 C.F.R. 416.1407, 416.1415.  See
J.A. 61, 65.

   /2/ After the court of appeals affirmed the district court's
judgment and denied the Secretary's petition for rehearing, it
declined to continue, pending certiorari, the partial stay that had
been entered by the district court (see Pet. App. 67a-68a).  However,
this Court, by order dated July 1, 1985, granted the Secretary's
application for reinstatment of that partial stay.  No. A-972.

   /3/ See, e.g., Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984),
petition for cert. pending, No. 85-55;  Johnson v. Heckler, 769 F.2d
1202 (7th Cir. 1985).

   /4/ The Secretary has adopted only one exception to the requirement
that the claimant fully exhaust his remedies through the Appeals
Council stage.  That exception applies where the claimant challenges
the constitutionality of a provision of the Social Security Act and
the Secretary determines after the reconsideration stage that there
are no other disputed questions of fact or law that bear on the claim.
 See 20 C.F.R. 404.923-404.928;  416.1423-416.1428;  Ringer, slip op.
2-3 n.2.  See Appellant's Br. at 9, 37-40, in Heckler v. Owens, No.
80-1905.  The exception has no application here, however, because
respondents have not challenged the constitutionality of any provision
of the Social Security Act.

   /5/ See 5 Fed. Reg. 4169, 4171-4174 (1940), adopting 20 C.F.R.
403.706(c), 402.708(g), 403.709(l), 403.710(e) (1941).  The original
regulations were based on the January 1940 report of the Social
Security Board regarding the manner in which 42 U.S.C. 405(g) would be
implemented.  See Salfi, 422 U.S. at 756-760 n.6;  id. at 790-792
(Brennan, J., dissenting).  That report made clear that the Appeals
Council would be an essential step in the administrative review
process;  that only a decision by the Appeals Council would constitute
the Board's "final verdict" on a claim;  and that the Board construed
the Act to provide that a decision would not be "final" for purposes
of judicial review until completion of any proceedings the Board
deemed necessary after it conducted the evidentiary hearing required
by 42 U.S.C. 405(b).  See S. Doc. 10, 77th Cong., 1st Sess. Pt. 3, at
38-39, 51-53 (1941).

   /6/ Social Security Amendments of 1954, ch. 1206, Section 106, 68
Stat. 1079;  Social Security Amendments of 1956, ch. 836, Section 103,
70 Stat. 815;  see 20 C.F.R. 403.706(c), 403.708(b), 403.708(g)
403.709(b), 403.709(l), 403710(e), (1954 & 1956).  Social Security
Amendments of 1972, Pub. L. No. 92-603, Tit. III, 86 Stat. 1465 et
seq.; see 20 C.F.R. 404.908, 404.911, 404.916, 404.918, 404.940,
404.946, 404.951 (1972).

   /7/ The Senate Report states (S. Rep. 98-466, supra, at 15):  Under
Section 205(g) of the Social Security Act, a claimant may obtain
judicial review only of the Secretary's "final decision" on a claim
made after a hearing, and only if he seeks judicial review within 60
days of that final decision.  Governing regulations in turn provide
that the Secreary's "final decision" subject to judicial review is
rendered only after the individual has pressed his claim for benefits
through all levels of the existing administrative appeals process,
including seeking review by the Appeals Council.  The Supreme Court
held in Weinberger v. Salfi, 422 U.S. 749, 764, 766 (1975), that full
exhaustion of the administrative appeal process established by the
Secretary's regulations is a jurisdictional prerequisite to seeking
judicial review pursuant to Section 205(g) of the Social Security Act,
and the Supreme Court recently reaffirmed that holding in Heckler v.
Ringer, No. 82-1772 (May 14, 1984), slip op. 2, 3, 16.  Accordingly,
the only claims raising the medical improvement issue that would be
"properly pending" in court under existing law on the date of
enactment would be the claims of individuals who exhausted their
administrative remedies through the Appeals Council stage and then
sought judicial review under Section 205(g) of the Social Security Act
within 60 days.

   /8/ Moreover, Congress demonstrated in the 1984 Act that it knows
how to grant relief to disability claimants even when they have not
satisfied the exhaustion requirement.  In Section 2(d) of the 1984 Act
(98 Stat. 1797), Congress provided for the remand to the Secretary,
for redetermination under the new statutory medical improvement
standard, of the claims of any individuals who were included as
members of a class that has been certified in a case involving medical
improvement, whether or not each individual class member has
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).  See Heckler v. Kuehner, No. 83-1593 (Nov. 5, 1984);
Heckler v. Lopez, No. 84-115 (Dec. 10, 1984).

   Congress took a different approach in cases involving individuals
who have mental impairments.  In Section 5(a) of the 1984 Act (98
Stat. 1801) (App., infra, 3a-5a));  Congress directed the Secretary to
develop new standards for the evaluation of mental impairments.  It
then provided in Section 5(c) (98 Stat. 1801) that any person who had
sought benefits based on a mental impairment and who was found not to
be disabled on or after March 1, 1981, could reapply to the Secretary
and be reevaluated under these new standards.  But Congress did not
provide for the reopening of the past administrative decisions denying
such claims, without regard to the jurisdictional limitations in 42
U.S.C. 405(g), as the court of appeals did in this case.  See
generally Pet. 29-30.

   /9/ Three of these plaintiffs were denied benefits at step two of
the sequential evaluation process because their impairments were found
by the ALJ to be "nonsevere" (J.A. 78-80 (Jane Doe I);  J.A. 21 (Jane
Doe III);  J.A. 125-126 (Richard Roe II)).  That determination at step
two made in unnecessary for the ALJ to consider the claimant's RFC at
steps four and five of the process.  See pages 7-8, supra.  Another
plaintiff was denied benefits because he was found by the ALJ, after
an individualized assessment, to have the RFC to do his own past work.
 There was no reliance on a "presumption" of ability to do unskilled
work generally (J.A. 155-156 (Richard Roe V.)).  Compare Orlando v.
Heckler, No. 84-2283 (7th Cir. Nov. 5, 1985), slip op. 11-14.  The
remaining named plaintiff was found by the ALJ to have an impairment
that met the listings, but he was denied benefits because he was not
in insured status at the time of the onset of his disability (J.A.
112-115 (Richard Roe (I)) -- a reason that likewise is unrelated to
the alleged presumption concerning RFC.

   /10/ Moreover, four of the five named individual plaintiffs whose
claims for benefits were denied by an ALJ already had exhausted their
administrative remedies through the Appeals Council stage and filed an
individual action for judicial review under 42 U.S.C. 405(g) by the
time the amended complaint was filed.  J.A. 20 (Jane Doe I);  J.A. 21
(Jane Doe III);  J.A. 22 (Richard Roe II);  J.A. 24 (Richard Roe V).
Any objection these plaintiffs had to the manner in which their claims
were decided could have been fully addressed in those individual
suits.

   /11/ The City and State of New York have no right to judicial
review -- under 42 U.S.C. 405(g) or any other statute -- of the
Secretary's interlocutory or final decision denying a claim for
benefits.  Section 405(g) grants a right of judicial review only to an
individual who was a party to the administrative reivew of the
particular claim.  This express grant of a right of judicial review to
certain parties in itself indicates that Congress has foreclosed
judicial review at the behest of other persons, such as the City and
State.  Block v. Community Nutrition Institute, No. 83-458 (June 4,
1984), slip op. 6 But in addition, the second sentence of 42 U.S.C.
405(h) bars review of any "decision" of the Secretary except as
provided in Section 405(g) and there is no affirmative grant of a
right of review to the City and State in the latter provision.

   /12/ The Court stated (461 U.S. at 778-779):  "(w)e conclude that,
at least in the absence of an appealable collateral order, Mathews v.
Eldridge, 424 U.S.C. 319, 331 n.11 (1976);  Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 545-547 (1949), the federal
courts may exercise jurisdiction only over a final order of the
Department."

   /13/ The regulations also provide for the Secretary to extend the
period for seeking further review at the earlier stages of the
administrative appeals process, 20 C.F.R. 404.909, 404.911,
404.933(c), 404.968(b), 416.1409(b), 416.1411, 416.1433(c),
416.1408(b).  A decision by the Secretary denying a request to extend
any of the filing periods is not subject to the administrative appeal
process or to judicial review.  20 C.F.R. 404.903(j), 416.1403(a)(8).
Cf. Califano v. Sanders, 430 U.S. 99, 108 (1977).

   /14/ The district court did hold that the Secretary had waived the
60-day issue under Fed. R. Civ. P. 8(c) as regards the entire class
because she did not specifically mention in it her answer to the
complaint (Pet. App. 59a), but the court of appeals did not reach that
question (id. at 17a).  The district court did not advert to the fact
that the Secretary did assert in her answer that the district court
lacked subject matter jurisdiction (J.A. 57), which was sufficient to
include a failure to comply with the requirements of Section 405(g).
Moreover the Secretary specifically raised the 60-day issue not only
in her post-trial brief, as the district court observed (Pet. App.
59a), but also at the outset of the trial, relying on the then-recent
stay proceedings in Heckler v. Lopez, supra (J.A. 161-163).

   /15/ As originally enacted in 1939, the third sentence of Section
205(h) of the Social Security Act (42 U.S.C. 405(h)) provided that no
action to recover on any claim arising under Title II of the Social
Security Act could be brought "under section 24 of the Judicial Code"
(53 Stat. 1371), which at that time contained all of the general
grants of jurisdiction to the district courts.  See Salfi, 422 U.S. at
756 n.3.  When the mandamus statute was enacted in 1962, Congress
placed it in Chapter 85 of Title 28 (see Act of Oct. 5, 1962, Pub. L.
No. 87-748, 76 Stat. 744 et seq.);  which likewise contains all of the
general grants of jurisdiction to the district courts and therefore is
the successor to the prior Section 41.  The 1962 amendment there by
placed the mandamus statute within the scope of the jurisidictional
bar in the third sentence of 42 U.S.C. 405(h).

   In the 1976 version of the United States Code, the codifiers
revised the third sentence of 42 U.S.C. 405(h) to refer to "section
1331 or 1346 of title 28," instead of "section 41 of title 28." This
change was intended to reflect the 1948 revision of Title 28 (see 42
U.S.C. (1976 ed.) 405 note, at 518) and had no legal effect.  North
Dakota v. United States, 460 U.S. 300, 311 n.13 (1983).  In Section
2663(a)(4)(D) of the Deficit Reduction Act of 1984 (Pub. L. No.
98-369, stat. 1162), Congress amended Section 205(h) of the Social
Security Act to refer to "section 1331 or 1346 of title 28." However,
that amendment was characterized as one of a number of "technical
corrections." H.R. Conf. Rep. 98-861, 98th Cong., 2d Sess. 1413-1415
(1984).  It does not suggest a congressional intent to allow review of
the Secretary's decision by way of mandamus, which theretofore was
foreclosed by the third sentence of Section 405(h) and remains barred
by its second sentence.

   APPENDIX