RICHARD SCHWEIKER, ET AL., PETITIONERS V. JAMES CHILICKY, ET AL. No. 86-1781 In the Supreme Court of the United States October Term, 1986 The Solicitor General -- on behalf of Richard Schweiker, former Secretary of Health and Human Services; John Svahn, former Commissioner of the Social Security Administration; and William R. Sims, Director of the Arizona Disability Determination Service (Arizona's component of the social security disability program) -- petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDING Petitioners are Richard Schweiker, former Secretary of Health and Human Services; John Svahn, former Commissioner of the Social Security Administration; and William R. Sims, Director of the Arizona Disability Determination Service. Respondents are James Chilicky, Dora Adelerte, and Spencer Harris. /1/ TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Statutory provisions involved Questions Presented Statement: A. The statutory and regulatory framework for review of disability claims B. The proceedings in this case Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-14a) is reported at 796 F.2d 1131. The opinion of the district court (App., infra, 15a-18a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 19a-20a) was entered on August 12, 1986. A petition for rehearing with a suggestion for rehearing en banc was denied on December 8, 1986 (App., infra, 21a-22a). On February 27, 1987, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including May 7, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent statutory provisions, 42 U.S.C. (& Supp. III) 405(g) and (h), are set forth in App., infra, 24a-26a. QUESTION PRESENTED Whether a Bivens remedy should be implied for alleged due process violations in the denial of social security disability benefits. STATEMENT A. The Statutory And Regulatory Framework For Review of Disability Claims 1. The disability programs under Title II (see 42 U.S.C. (& Supp. III) 401 et seq.) and Title XVI (see 42 U.S.C. (& Supp. III) 1381 et seq.) of the Social Security Act are administered jointly by state agencies and the Secretary of Health and Human Services. Congress has directed that the determination whether an individual is under a disability shall be made in the first instance by a state agency (here, the Arizona Disability Determination Service), pursuant to regulations, guidelines, and performance standards established by the Secretary. 42 U.S.C. (& Supp. III) 421(a), 1383b(a); 20 C.F.R. 404.1503, 416.903; Bowen v. City of New York, No. 84-1923 (June 2, 1986), slip op. 3. 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 (see 42 U.S.C. (& Supp. III) 421(i)) -- the individual may request a de novo reconsideration by the state agency. The claimant has the right to a face-to-face interview before the reconsideration (see 42 U.S.C. 405(b)(2); 20 C.F.R. 404.917) and he is personally notified that he must request reconsideration within 60 days of his receipt of the adverse initial determination. 20 C.F.R. 404.904, 404.909(a)(1), 416.1404, 416.1409(a). If he does not do so, the adverse initial determination becomes binding upon him. 20 C.F.R. 404.905, 416.1405. If an individual is dissatisfied with the agency's decision on reconsideration, he "shall be entitled to a hearing thereon by the Secretary." 42 U.S.C. (Supp. III) 421(d); see also 42 U.S.C. 1383(c)(1). The Act requires -- and the claimant is personally notified -- that he must request such a hearing, which will be conducted by an ALJ, within 60 days of his receipt of the state agency's reconsideration decision. 42 U.S.C. (Supp. III) 405(b)(1); 42 U.S.C. 1383(c)(1). Absent such timely request, the state agency's decision becomes binding upon the claimant. 20 C.F.R. 404.920, 404,921(a), 404.933(b), 416.1404(b)(3), 416.1405, 416.1420, 416.1421(a), 416.1433(b). If the ALJ's decision is adverse to the claimant, he then may seek review by the Appeals Council of the Social Security Administration (SSA). The claimant is specifically informed that if he does not seek such review within 60 days, the adverse ALJ decision is binding. 20 C.F.R. 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468. After the appeals Council has either denied review of the ALJ's decision or granted review and rendered its own decision, the claimant may seek judicial review pursuant to 42 U.S.C. 405(g). See 42 U.S.C. (Supp. III) 421(d), 1383(c)(3); 20 C.F.R. 404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481, 422.210. 2. In addition to the multi-level framework for review just outlined, Congress has afforded other procedural protections for individuals, like respondents here, who have been receiving disability benefits but whose eligibility to continue to receive such benefits is under review by the Secretary. With respect to recipients of Title II benefits, Congress in 1983 enacted temporary legislation (which has been extended through January 1, 1988), permitting claimants to continue to receive benefits following an adverse initial decision until an ALJ had rendered a decision on the claim. Pub. L. No. 97-455, Section 2, 96 Stat. 2498, codified at 42 U.S.C. (Supp. III) 423(g); Pub. L. No. 98-460, Section 7(a)(2), 98 Stat. 1802. Congress has afforded the same protection to Title XVI (Supplemental Security Income (SSI) recipients, whose eligibility is based on need. See Pub. L. No. 98-460, Section 7(b), 98 Stat. 1803, codified at 42 U.S.C. (& Supp. III) 1383(a)(7). This statutory action followed years of a similar regulatory practice with respect to SSI recipients. See 20 C.F.R. 416.1336(b). Finally, Congress has required the Secretary to establish demonstration projects in at least five states, pursuant to which the Secretary gives Title II and Title XVI claimants the opportunity for a personal appearance prior to the initial determination of ineligibility under 42 U.S.C. (& Supp. III) 421(i), rather than afterwards. Pub. L. No. 98-460, Section 6(d), 98 Stat. 1802, codified at 42 U.S.C. 421 note. Thus the recipient is enabled to argue his claim in advance of the initial determination, where the state agency has reached a preliminary conclusion adverse to the claimant. Congress has directed the Secretary to file a report concerning these projects. Ibid. B. The Proceedings in This Case 1. Respondents are three individuals /2/ who were beneficiaries of disability benefits under Title II or Title XVI. They filed suit against Richard Schweiker, John Svahn, and William R. Sims in their official and individual capacities. /3/ Richard Schweiker is the former Secretary of Health and Human Services; John Svahn is the former Commissioner of the Social Security Administration; and William R. Sims is the present director of the Arizona Disability Determination Service. /4/ App., infra, 2a, 15a-16a. Respondents were subject to "continuing disability review" (CDR), a process Congress enacted in 1980 to ensure that only those individuals whose medical conditions still warranted disability status received payment. Pub. L. No. 96-265, Section 311(a), 94 Stat. 460, codified at 42 U.S.C. (& Supp. III) 421(i); see also App., infra, 2a. Their benefits were terminated by the CDR process; the benefits were, however, ultimately reinstated through the administrative appeals process. See App., infra, 2a. In their complaint, respondents claimed that petitioners had violated their due process rights by, inter alia, accelerating the starting date of the CDR process; illegally nonacquiescing in the law of the circuit; failing to apply uniform written standards in implementing the CDR process; failing to render decisions consistent with allegedly dispositive evidence; and using an impermissible quota system under which state agencies were required to terminate a certain number of recipients. App., infra, 2a-3a; see also page 7 note 6, infra. Respondents sought injunctive and declaratory relief, and money damages for "emotional distress and for loss of food, shelter and other necessities proximately caused by (petitioner's) denial of benefits without due process" (App., infra, 3a n.2). 2. The district court dismissed the case in its entirety on qualified immunity grounds (App., infra, 15a-18a). It discussed why the government's policies of accelerated review and non-acquiescence violated no clearly established statutory or constitutional rights, and thus concluded that Harlow v. Fitzgerald, 457 U.S. 800 (1982), barred respondents' damage claims with respect to these policies (App., infra, 16-18a). The district court did not discuss respondents' other claims, but apparently determined that they were barred by qualified immunity as well (see id. at 16a, 18a). 3. Respondents then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed in part, reversed in part, and remanded the case to the district court for further proceedings (App., infra, 1a-14a). On appeal, the only issues raised by respondents pertained to their Bivens /5/ claims for money damages against petitioners in their individual capacities (see Resp. C.A. Br. ii). Petitioners contended that there was no subject matter jurisdiction to entertain respondents' claims, since the procedures set forth in 42 U.S.C. 405(g) are the exclusive means of redress for actions "arising under" the relevant provisions of the Social Security Act. See 42 U.S.C. (Supp. III) 405(h). They also pointed out that the existence of the Act's elaborate procedures for resolving disability claims counsels strongly against judicial implication of a damages remedy, and that there could be no colorable claim of denial of due process when respondents were afforded the protections of Section 405(g). Petitioners also contended that the district court lacked personal jurisdiction as well as subject matter jurisdiction, and that in any event respondents' claims were barred by qualified immunity. The court of appeals found that the district court had subject matter jurisdiction (App., infra, 4a-6a). It reasoned that the action was not for restoration of disability benefits, but rather for damages stemming from constitutional violations committed in terminating those benefits, so that it did not arise under the Social Security Act and was not barred by Section 405(h) (App., infra, 6a). The court then ruled that the officials waived their personal jurisdiction defense by not raising it at the appropriate stage in the district court proceedings (id. at 7a-9a). Finally, the court of appeals affirmed the district court's dismissal on qualified immunity grounds of respondents' acceleration of review and nonacquiescence claims (id. at 11a-13a), but reversed the district court's dismissal on qualified immunity grounds of the balance of respondents' claims /6/ and remanded for further proceedings (id. at 13a-14a). The court of appeals concluded that under the current record it could not determine that respondents could prove no state of facts establishing an actionable due process violation for the latter claims (id. at 14a). The court of appeals denied petitioners' petition for rehearing with a suggestion for rehearing en banc, which was limited to the subject matter jurisdiction issue (App., infra, 21a-22a). REASONS FOR GRANTING THE PETITION The decision of the court of appeals can be squared with neither the plain language of Section 405(h) nor the decision of this Court in Bush v. Lucas, 462 U.S. 367 (1983). Furthermore, the creation of a Bivens remedy for social security claims would threaten to overwhelm not only the Social Security Administration but also the federal courts with an avalanche of litigation. If respondents -- who were ultimately denied not a penny of benefits and whose damage claims border on the frivolous -- can maintain a Bivens action, then millions of social security claimants can do so as well. Accordingly, action by this Court is appropriate. At the same time, this is the first such ruling by a court of appeals since this Court's decision in Bush v. Lucas, /7/ and there is no conflict in the circuits. The United States will shortly (May 13, 1987) file a petition for certiorari in Cooper v. Kotarski, posing the question of the application of Bush v. Lucas in the probationary employment context, where a clear circuit conflict has developed. In order to conserve this Court's limited plenary review docket, we suggest that the Court hold this petition pending resolution of Kotarski. 1. a. The court of appeals' decision is inconsistent with this Court's decision in Bush v. Lucas. In Bush, the plaintiff asked this Court to authorize a Bivens remedy for federal employees whose First Amendment rights are allegedly violated by their employers. In its analysis, the Court assumed that the "civil service remedies were not as effective as an individual damages remedy and did not fully compensate (plaintiff) for the harm he suffered" (462 U.S. at 372 (footnotes omitted)) -- that is, that "a federal right has been violated and Congress has provided a less than complete remedy for the wrong" (id. at 373). It concluded, however, that the proper focus for analysis was not on "what remedy the court should provide for a wrong that would otherwise go unredressed," but rather on "whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue" (id. at 388). The Court held that, in light of the comprehensive procedural and substantive provisions of the civil service laws governing the employment relationship between the government and its employees, which the Court emphasized had been carefully constructed by Congress over many years, it would be inappropriate to create a new Bivens remedy. Id. at 388-390; see also id. at 390-392 (Marshall, J., concurring). Like the civil service laws, the Social Security Act's special statutory procedures were the result of a carefully considered, step-by-step fine-tuning by Congress. See, e.g., Heckler v. Day, 467 U.S. 104, 111-118 (1984). This Court has noted that, "(t)o facilitate the orderly and sympathetic administration of the disability program of Title II, the Secretary and Congress have established an unusually protective four-step process (discussed at pages 2-4, supra) for the review and adjudication of disputed claims" (id. at 106). The scheme has, for at least the last decade, "inspired almost annual congressional debate" (Heckler v. Day, 467 U.S. at 112). Indeed, as discussed at pages 3-4, supra, Congress in 1983 specifically refined the administrative review process to address the very concerns at issue here -- namely, that disability claimants might experience undue financial or emotional harm by a cut-off of benefits while they pursued their administrative remedies. Accordingly, claimants like respondents may now continue to receive benefits through the ALJ hearing stage while they challenge an adverse decision made at an earlier stage of the administrative process, and, in statutorily mandated demonstration projects, are given an opportunity to appear and be heard prior to an initial determination, where the state agency has given preliminary indication of an adverse decision. The structure and history of the social security disability program thus plainly demonstrate that we are dealing with a "comprehensive scheme * * * provid(ing) meaningful remedies" (Bush, 462 U.S. at 386), and that Congress has long been attentive to fine-tuning those remedies as necessary. This is a "pervasively regulated area," and the court of appeals decision is an "unwarranted judicial intrusion" (Heckler v. Day, 467 U.S. at 119). As in Bush, Congress has provided "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations" (Bush, 462 U.S. at 388), which would only be impaired by recognition of supplementary, piece-meal remedies. See id. at 379-380, 388-389; United States v. Standard Oil Co., 332 U.S. 301, 314 (1947). In Bush, this Court "decline(d) 'to create a new substantive legal liability without legislative aid and as at the common law,' * * * because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it" (462 U.S. at 390 (citation omitted)). And in connection with another section of the Social Security Act, this Court in Heckler v. Ringer, 466 U.S. 602, 627 (1984), observed that Congress must have understood that "hardship" could occur in the course of pursuing Section 405(g) remedies and, "(i)f the balance is to be struck anew, the decision must come from Congress and not from this Court." Precisely the same conclusion should be drawn here. Furthermore, there is no reason to assume that the administrative and judicial review process painstakingly constructed and constantly adjusted by Congress is less than a fully adequate remedy for an erroneous denial of benefits at a preliminary stage of that process, even if the purported consequences are somehow removed from that denial per se and even if the challenge is cast in "due process" terms. Cf. Mathews v. Eldridge, 424 U.S. 319, 339-340 (1976). /8/ b. A Bivens remedy is inappropriate in the present context for a reason which did not obtain in Bush. The Court began in Bush by stressing that "Congress ha(d) not expressly precluded the creation of such a (Bivens) remedy by declaring that existing statutes provide the exclusive mode of redress" (462 U.S. at 373). See also id. at 377-378; Carlson v. Green, 446 U.S. 14, 19 (1980). In this case, on the other hand, Congress has done just that. 42 U.S.C. (Supp. III) 405(h) provides: The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under Sections 1331 or 1346 of title 28 to recover on any claim arising under this subchapter. Section 405(h), therefore, has two provisions which bar Bivens actions. Its second sentence plainly precludes the review of any finding of fact or other decision by the Secretary except as provided in the Social Security Act. Section 405(g), in turn, is the only mechanism in the Act for the review of such decisions. Moreover, the full remedy available under Section 405(g) is the retroactive payment of disability benefits wrongfully terminated -- which respondents have already received. Under these provisions, judicial review of administrative decisions on claims for social security benefits is unavailable except where expressly authorized by the Social Security Act. See Califano v. Sanders, 430 U.S. 99, 110 (1977) (Stewart, J., concurring); S. Rep. 734, 76th Cong., 1st Sess. 52 (1939); H.R. Rep. 728, 76th Cong., 1st Sess. 43-44 (1939). Similarly, the third sentence of Section 405(h) precludes suits brought under 28 U.S.C. 1331 "to recover on any claim arising under" the social security disability program. Notwithstanding the contrary conclusion of the court of appeals (App., infra, 6a), it is plain that respondents' Bivens action under Section 1331 "arises under" the disability benefits statute. This suit is exclusively concerned with the Secretary's administration of that statute and with rights created under it. Ironically, the court of appeals appears to rest its contrary decision on the fact that respondents' benefits under the statute have already been restored, thus leading it to the erroneous inference that any remaining action relating to the earlier denial of benefits does not arise under the Act (see App., infra, 6a). Nor will this Court's decisions under the statute support the court of appeals' decision. In Heckler v. Ringer, 466 U.S. at 615, 621-622, the Court held that plaintiffs' claims that the Secretary had violated their due process and statutory rights in denying medicare benefits "arose under" the Social Security Act. The Court stressed that the "arising under" language of Section 405(h) invokes a "broad test," which includes "any claims in which 'both the standing and the substantive basis for the presentation' of the claims is the Social Security Act. 466 U.S. at 615 (quoting Weinberger v. Salfi, 422 U.S. 749, 761 (1975)). The Court noted that plaintiffs had an "adequate remedy in Section 405(g)" (466 U.S. at 617), had not "raise(d) a claim wholly 'collateral' to their claim for benefits" (id. at 618), and had "no colorable claim that an erroneous denial of * * * benefits * * * cannot be remedied by the later payment of benefits" (ibid.). The Court concluded that plaintiffs' claim "must be construed as a 'claim arising under' the Medicare Act because any other construction would allow claimants substantially to undercut Congress' carefully crafted scheme" (id. at 621). See also id. at 615; Weinberger v. Salfi, 422 U.S. at 756-762. Such reasoning is directly applicable to this case. Just as plaintiff Ringer's request for declaratory relief "arose under" the statute even though his claim was to ensure future benefits, respondents claims here arise under the statute even though their complaint is about the nonreceipt of past benefits. See 422 U.S. at 621. By holding otherwise, the court of appeals has "invit(ed) (respondents) to bypass the exhaustion requirements of the * * * Act" (ibid.). This Court warned in Weinberger v. Salfi that the "sweeping and direct" jurisdictional bar embodied in the "arising under" language of Section 405(h) cannot be avoided simply because plaintiffs cast their allegations in constitutional terms (422 U.S. at 757, 760-761). That, of course, is all that respondents here have done. Their "due process" claim can be made by any claimant unhappy with an adverse benefit decision at any level of the administrative process. "Emotional distress" can be claimed every time an adverse benefits decision is rendered, and of course the denial of benefits will always cause the denial of what could have been bought with them -- respondents' "loss of food, shelter, and other necessities proximately caused by (petitoners') denial of benefits" (see App., infra, 3a n.2). Cf. Heckler v. Ringer, 466 U.S. at 627. There is no other component to respondents' claim. Surely a construction of Section 405(h) that would allow any challenge to a benefits decision to be split into two parts -- one governed by Section 405(g), the other immediately amenable to resolution as a Bivens claim in district court -- would defeat any purpose of that statute. Thus, the purpose as well as the language of the statute would be defeated by the court of appeals' counterintuitive reading. 2. The potential impact of the court of appeals' decision -- both on the federal courts and on the Social Security Administration -- is dramatic. The SSA hearing system is "'probably the largest adjudicative agency in the western world.'" Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (citation omitted). See also Califano v. Boles, 443 U.S. 282, 283 (1979) ("As an exercise in governmental administration, the social security system is of unprecedented dimension."); Richardson v. Perales, 402 U.S. 389, 399 (1971) ("The system's administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend."). SSA processes some two million disability claims each year. See Heckler v. Day, 467 U.S. at 106. We are advised by HHS that in excess of 100 million other claims, under the Medicare, AFDC and retirement programs, are also processed annually. Under the court of appeals' decision, an adverse ruling at any stage of any one of these cases can give rise to a Bivens suit for delay in payment or emotional distress. /9/ The burden of this litigation on the Social Security Administration and the courts would be staggering. The effects of this decision within the Ninth Circuit, where it has precedential effect, and anywhere else that it is found persuasive, may include a substantial drain on agency resources to defend these Bivens actions. In addition, agency personnel who make disability (and presumably other eligibility) determinations will be inhibited in the performance of their duties, because they will know that their actions can result in individual damage actions against them. Cf. Bush, 462 U.S. at 388-389. This is true for both factual and policy determinations, and thus will affect all levels of program administration. 3. While the court of appeals' decision is clearly wrong and seriously disruptive, we suggest that this petition be held pending disposition of Cooper v. Kotarski (petition to be filed no later than May 13, 1987), which also raises issues regarding the proper application of Bush v. Lucas. /10/ In Kotarski, a probationary federal employee brought a Bivens action to obtain review of an employment action for which he was expressly denied any remedy under the civil service laws. We argue there that, pursuant to the principles established in Bush, a Bivens action cannot be used to secure rights that Congress expressly declined to extend to such probationary employees. As we explain in our petition in Kotarski, that case presents the Court with a clear conflict in the circuits on an issue of great and recurrent practical importance to the government. It clearly requires this Court's review, and we believe that such review is likely to provide guidance in the application of Bush v. Lucas in the context of this case. The present case, by contrast, presents no intercircuit conflict. While we believe that absent Kotarksi this case would merit full review, in the interest of conserving the Court's plenary docket, we recommend that this petition be held pending disposition of Kotarksi. Should review be denied in that case, or if the Court's opinion there is not dispositive of this case, we urge that this petition be granted. CONCLUSION The petition for a writ of certiorari should be held pending the Court's disposition of Cooper v. Kotarski, petition for a writ of certiorari to be filed May 13, 1987. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Assistant to the Solicitor General WILLIAM KANTER HOWARD S. SCHER Attorneys MAY 1987 /1/ In the original complaint there were, besides respondents, seven other plaintiffs. These seven, who did not pursue the appeal to the Ninth Circuit, were Atanacio Alamanza, Arthur Flynn, Donald Bond, Demitrio Higuera, Jospeh Tellez, Bonnie Bircher, and Connie Diaz. /2/ Respondents have withdrawn their earlier motion for class certification (see App., infra, 4a, 15a). As stated at page II note 1, supra, of the ten original plaintiffs only the three respondents pursued their claim through the court of appeals. /3/ Respondents failed to serve two additional defendants properly, and consequently the district court dismissed the claims against them in their individual capacities (App., infra, 2a-3a n.1, 16a). By the time the case reached the court of appeals, only claims against officials in their individual capacities remained (id. at 4a), and consequently these two defendants are no longer in the case. /4/ The Arizona DDS is authorized by statute and is an integral part of the federal disability determination process. See 42 U.S.C. (& Supp. III) 421(a). /5/ See Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971). /6/ As described by the court of appeals (App., infra, 13a-14a), the remaining allegations are: 1. Knowing use of unpublished criteria and rules and standards contrary to the Social Security Act. 2. Intentional disregard of dispositive favorable evidence. 3. Purposeful selection of biased physicians and staff to review claims. 4. Imposition of quotas. 5. Failure to review impartially adverse decisions. 6. Arbitrary reversal of favorable decisions. 7. Denial of benefits based on the type of disabling impairment. 8. Unreasonable delays in receiving hearings after termination of benefits. /7/ In the pre-Bush v. Lucas decision of Ellis v. Blum, 643 F.2d 68 (1981), the Second Circuit upheld similar actions for damages based on allegations of emotional distress, on reasoning similar to that of the court of appeals here. /8/ See also Parratt v. Taylor, 451 U.S. 527, 537-544 (1981). In Parratt, this Court declined to find that plaintiff had established a violation of the Due Process Clause of the Fourteenth Amendment, where the claimed deprivation occurred as the result of the unauthorized failure of agents of the State to follow an established state procedure. The Court specifically noted (id. at 544) that the state remedies may not have provided plaintiff with all of the relief which he might have claimed in an action brought under 42 U.S.C. 1983. Nevertheless, the Court ruled that "(t)he remedies provided could have fully compensated the (plaintiff) for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process" (451 U.S. at 544). See also id. at 555 n.1 (citations omitted) (Marshall, J., concurring in part and dissenting in part) ("To be sure, the state remedies would not have afforded (plaintiff) all the relief that would have been available in a Section 1983 action. I nonetheless agree with the majority that 'they are sufficient to satisfy the requirements of due process.'"); Hudson v. Palmer, 468 U.S. 517, 530-536 (1984). Similarly, the remedies provided in Section 405(g) and the regulations issued pursuant to that section not only could have provided respondents with full relief from the denial of rights under the statute, but did so. /9/ The court of appeals' decision here also produces the rather anomalous result that claimants may seek damages for emotional distress resulting from an alleged deprivation of due process by the Secretary (and other officials) for any adverse benefit decision -- even when, as here, the decision challenged is not the Secretary's final decision and even when the final decision turns out to be fully favorable to the claimant. This result, of course, is entirely inconsistent with the exhaustion requirements of Section 405(g). See Weinberger v. Salfi, 422 U.S. at 756-759. /10/ A copy of our petition in Kotarski will be sent to opposing counsel at the time it is filed. APPENDIX