[fcb-l] COURT RULING IN ACB VS SSA

[sheila]

I can relate, as I just received this 9 page form that I am supposed to fill 
out to prove that as a working person I still qualify for my benefits. How 
do they propose I do this?
Sheila
----- Original Message ----- 
From: "Jay Bader" <badddman at bellsouth.net>
To: "FCB E-mail Discussion List" <fcb-l at acb.org>
Sent: Wednesday, October 21, 2009 6:20 PM
Subject: [fcb-l] COURT RULING IN ACB VS SSA


> Hi all.  Please read the following message from ACB Executive Director
> Melanie Brunson.  Thanks.
>
>
> Jay
>
> -----Original Message-----
>
> Date: Wed, 21 Oct 2009 13:24:12 -0400
> From: "Melanie Brunson" <mbrunson at acb.org>
> Subject: [announce] Court ruling in ACB V. SSA
>
> Hello all.  As many have already heard, we received word late yesterday 
> that
> Judge Alsup has issued an order in our case against the Social Security
> Administration, in which he finds that agency's failure to provide notices
> to blind and visually impaired beneficiaries, as well as representative
> payees, to be a violation of Section 504 of the Rehabilitation Act.  This 
> is
> a major victory of ACB, the individual class members, and the lawyers who
> helped us present our case.  Because these lists do not allow me to share
> the entire text of the court's decision here, I will paste some key 
> portions
> below.  I will include the actual order, and the portion of the Findings 
> of
> Fact and Law which outlines the relief granted by the court.  I have 
> copies
> of the decision in its entirety in Word and Daisy formats, as well as the
> original pdf document that we obtained from the court.  Please feel free 
> to
> contact the office if you would like one.  We will also put them on the 
> ACB
> website.
>
> Enjoy reading below.
>
> Melanie Brunson
>
>
>
> Begin text of order
>
> United States District Court
>
> For the Northern District of California
>
>
> IN THE UNITED STATES DISTRICT COURT
>
> FOR THE NORTHERN DISTRICT OF CALIFORNIA
>
>
> AMERICAN COUNCIL OF THE BLIND, a District of Columbia non-profit
> corporation, SCARLETT MILES, MARVELENA QUESADA, ARLENE DOHERTY, ALICE
> MARJORIE DONOVAN, BILLIE JEAN KEITH, GEORGE P. SMITH, MARY ANN ALEXANDER,
> and LAURA M. RUSSELL on behalf of themselves and all others similarly
> situated, Plaintiffs,
>
>
> v.
>
>
> MICHAEL ASTRUE, Commissioner of the Social Security Administration, in his
> official capacity, and SOCIAL SECURITY ADMINISTRATION, Defendants.
>
>
> No. C 05-04696 WHA
>
>
> JUDGMENT
>
> For the reasons stated in the accompanying order, FINAL JUDGMENT IS HEREBY
> ENTERED in favor of both certified classes and the named plaintiffs and
> against defendants with respect to the Rehabilitation Act claim. FINAL
> JUDGMENT IS HEREBY ENTERED in favor of defendants and against both 
> certified
> classes and the named plaintiffs with respect to the due process claim. No
> damages were sought in this case. Judgment is for injunctive and 
> declaratory
> relief. The Court will retain jurisdiction, subject to further order, to
> supervise the injunctive and declaratory relief set forth in the
> accompanying order.
>
> IT IS SO ORDERED.
>
> Dated: October 20, 2009.
>
> WILLIAM ALSUP
>
> UNITED STATES DISTRICT JUDGE
>
> Case3:05-cv-04696-WHA Document324 Filed10/20/09
>
> RELIEF GRANTED
>
> With respect to the scope of relief, a district judge would ordinarily
> consider remanding the issue of systematic relief to the agency so that it
> could pursue system-wide rulemaking in the first instance. The litigation
> posture taken by SSA herein militates decidedly against this approach,
> however. Back in 2008, after an order ruled against SSA on whether Section
> 504 applied to the problem at hand, the Court invited both sides to 
> comment
> on which of four alternatives should be pursued (Dkt. No. 78 at 12-13):
>
> 1. Actively continue litigating this case under Section 504 of the
> Rehabilitation Act, decide the issue of class certification, and determine
> the scope of relief, if any.
>
> 2. Stay the proceedings of the case so that the agency can engage in
> rulemaking or pursue other agency action in light of the ruling on the
> merits made herein. This course would require that the agency concede the
> correctness of this ruling on the merits. The Court would maintain
> jurisdiction to review any rule or policy subsequently adopted.
>
> 3. Remand the action to the agency for rulemaking or other agency action.
> This would also require that the agency concede the correctness of this
> ruling on the merits. This course, however, might be problematic because
> there seems to be no affirmative agency action forming the predicate for
> original subject-matter jurisdiction.
>
> 4. Certify this order for interlocutory review under 28 U.S.C. 1292(b) and
> stay all proceedings. Both sides, including SSA, requested that the
> litigation continue with a decision on the merits.
>
> Having spurned the opportunity for a stay pending rulemaking, the agency
> has, in effect, consented to resolve the case by litigation, not 
> rulemaking.
> The agency has litigated the entirety of the issues under Section 504 and
> Section 85.51, including the question of undue burden as to the proposed
> alternatives at trial.
>
>
> For the same reason, this order will not merely order the agency to
> henceforth comply with Section 85.51 (the provision allowing individuals 
> to
> ask the agency for an accommodation in the form of communications). SSA 
> has
> spurned that opportunity and chosen to litigate on a class-wide basis.
> Moreover, until this litigation was underway, the agency refused to even
> acknowledge that it was obligated to follow Section 504, routinely denying
> individual requests for accommodation. In this litigation, it has been 
> quick
> to find lame excuses for noncompliance but exceedingly slow to favor
> accommodations. To merely order the agency to comply with Section 85.51
> would lead to more lame excuses with no accommodations. Since the agency 
> has
> chosen to litigate this case on a class-wide basis, this order will 
> require
> relief on a class-wide basis. Consequently, the following relief is 
> ordered:
>
> 1. For all notices and other communications with blind and visually 
> impaired
> and Title II and Title XVI recipients and authorized representatives,
> defendants shall develop and shall offer a Braille alternative and a
> navigable Microsoft Word CD alternative no later than APRIL 15, 2010.
>
> 2. By DECEMBER 31, 2009, defendants shall provide notice to all recipients
> and authorized persons shown in its records to be blind or visually
> impaired:
>
> (a) advising of the availability of the foregoing new alternatives and
> giving them an opportunity to elect one of the two above alternatives with
> an effective date of APRIL 15, 2010. The notice should advise that 
> selection
> of one of the two alternatives would discontinue any special notice
> previously selected under the special notice policy, i.e., that the
> recipient would not be entitled to both a SNP notice as well as a new
> alternative. The newest alternatives, to the extent selected, would 
> relieve
> the agency of the burden of making the SNP notice and, to that extent, 
> would
> be less burdensome on the agency; and
>
> (b) advising that the blind and visually impaired are individually 
> entitled
> to ask defendants to provide any other alternative accommodation preferred
> by said individual. The notice shall describe the Section 85.51 procedure
> and fully comply with its duty to advise as to rights. This order is 
> without
> prejudice to future relief to any individual pursuant to any such 
> individual
> request pursuant to Section 85.51 and the agency is hereby ordered to 
> comply
> in good faith with Section 85.51.
>
> 3. In addition to the notice required by Paragraph 2, defendants shall 
> make
> an appropriate announcement on its website and shall train its staff 
> dealing
> with the blind and visually impaired to communicate orally the notice
> described above when such individuals call in, email in, or write in, all 
> to
> be effective by APRIL 15, 2010. The Court realizes that there will be some
> blind and visually impaired recipients whose impairment will not be noted 
> in
> the records and thus those individuals will not receive the mailed notice
> required by above.
>
> Those individuals, however, may learn of the expanded options via the
> website and/or through telephone communications. This order finds that 
> more
> expansive dissemination of the written notice would not be worth the
> incremental financial burden. The American Council of the Blind is hereby
> requested to give appropriate notice of the relief ordered herein to as 
> many
> blind and visually impaired individuals as feasible through its website 
> and
> publications. The Court finds that in due course everyone with a need to
> know the change will be fully informed.
>
> 4. By NOVEMBER 25, 2009, defendants shall file a specific description of 
> the
> Braille and Microsoft Word CD it proposes to offer, the specific form of
> notice, and its specific plan of dissemination. It shall also spell out a
> systematic plan for receiving and ruling on requests for accommodation 
> under
> Section 85.51. By DECEMBER 4, 2009, both sides shall meet-and-confer in
> person on the adequacy of the proposal as well as on the form of notice 
> and
> manner of dissemination. Any objection must be filed by DECEMBER 18, 2009,
> and any response thereto by DECEMBER 29, 2009. A hearing shall be held if
> needed.
>
> 5. By APRIL 16, 2010, defendants must file a certificate of compliance 
> under
> oath stating in detail what was done to comply with this order.
>
> 6. After APRIL 16, 2010, no social security benefits may be reduced or
> terminated to any individual shown in the SSA records to be blind or
> visually impaired (or whose authorized payee is shown to be blind or
> visually impaired) unless such person was first provided with the notice
> prescribed above and the method of notice, if any, selected by said person
> was followed.
>
> 7. The Court will retain jurisdiction to enforce this order, including to
> monitor whether it is complying with its duties under Section 85.51.
>
> IT IS SO ORDERED.
>
> Dated: October 20, 2009.
>
> WILLIAM ALSUP
>
> UNITED STATES DISTRICT JUDGE
>
>
> Melanie Brunson
> Executive Director
> American Council of the Blind
> 2200 Wilson Blvd. Suite 650
> Arlington, VA 22201
> Ph. (202) 467-5081, (800) 424-8666
> Fax: (703) 465-5085
> mbrunson at acb.org
>
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