I-5-4-63.Laird v. Stilwill

Table of Contents
I Purpose
II Background
III Definition of the Class
IV Processing Instructions
V Inquiries
Attachment 1 Final Order Approving Settlement; Filed with the United States District Court for the Northern District of Iowa on April 2, 1999 and Approved by the Court on November 10, 1999.

Issued: November 3, 2000

I. Purpose

This Temporary Instruction advises OHA adjudicators of the Final Order entered by the United States District for the District of Iowa on November 10, 1999, approving the parties' settlement agreement in the Laird v. Stilwill class action. The Laird class action involved alleged deficiencies by the Iowa Disability Determination Services (DDS) regarding its actions and procedures in processing disability cases.

The final settlement order does not require OHA to process cases any differently. However, we are providing these instructions for informational purposes. Program Operation Manual System instructions have been printed and distributed to advise field office and Disability Determination Service adjudicators of their responsibilities under the Laird settlement agreement.

II. Background

On February 15, 1995, plaintiffs filed a statewide class action complaint against the director of the Iowa DDS and challenged the standards, policies and procedures that the defendant uses in determining disability for Social Security purposes. Specifically, plaintiffs alleged that the Iowa DDS: 1) did not properly evaluate the claimant's subjective complaints under 20 CFR §§ 404.1529 and 416.929 and Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), supplemented, 751 F.2d 943, 948 (8th Cir. 1984); 2) did not give the proper weight to the well-supported opinion of the treating physician, contrary to 20 CFR §§ 404.1527 and 416.927 and Ghant v. Bowen, 930 F.2d 633 (8th Cir. 1993); and 3) did not utilize the services of a qualified vocational specialist in evaluating the claimant's claim contrary to 20 CFR §§ 404.1569a(d) and 416.969a(d), McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1983) and Social Security Ruling (SSR) 83-14. Plaintiffs requested declaratory relief, a preliminary and permanent injunction and redeterminations for all class members.

On April 24, 1995, the court denied the State defendant's motion to dismiss. The court held that it had subject matter jurisdiction over plaintiffs' claims under 42 U.S.C. § 1983, despite provisions for appeal and review of individual disability determinations and Federal oversight of the State agency. On April 25, 1995, the court held a hearing on plaintiffs' motion for class certification and conditionally certified a class. On May 22, 1995, the court granted SSA's motion to intervene and found that plaintiffs' request for a preliminary injunction was moot. Following this decision, the parties commenced discovery and plaintiffs deposed various SSA officials.

On April 24, 1996, plaintiffs filed an amended complaint to delete the second allegation listed in the original complaint and to add allegations that the DDS: 1) did not make express credibility determinations and set forth inconsistencies in the record which led it to reject the claimant's complaints of pain and 2) assessments of residual functional capacity were not documented to support a conclusion concerning what the claimant could perform in a work setting, were not fully responsive to the claimant's statements and did not contain detailed assessments of an individual's capacity to perform and sustain activities critical to work performance contrary to 20 CFR §§ 404.1545-46 and 416.945-46 and SSR 85-16 and SSR 82-53. The amended complaint also added a new plaintiff and noted several facts that had changed since the filing of the additional complaint (e.g., the award of benefits to Paula Laird, the conditional certification of the class and the Commissioner's intervention).

In 1997, both parties filed motions for summary judgment. On June 12, 1997, the district court issued an opinion and order concerning the parties' summary judgment motions. In its opinion, the court found evidence that the Iowa DDS did not properly evaluate plaintiffs' subjective complaints and did not follow Polaski v. Heckler and Social Security Ruling 96-7p (Titles II and XIV: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements). The court also found that although it appeared that the DDS did not make express credibility determinations in the past, it was unknown what impact SSRs 96-7p and 96-8p (Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims) (which were published on July 2, 1996) would have on the manner the DDS makes credibility determinations in the future. Further, the court found that a genuine issue of fact existed as to whether the individuals who evaluate disability claims and make vocational determinations are “vocational specialists” and are qualified to perform their assigned jobs and whether DDS employees prepare adequate residual functional capacity forms. The court ordered SSA to conduct several studies to help resolve these issues. The court also found that defendants had not offered a legitimate reason for following a nonacquiescence policy. On August 18, 1997, the Federal defendant filed a memorandum in support of its motion for reconsideration of the court's June 1997 order which dealt with plaintiffs' claim that the State defendant failed to properly evaluate subjective complaints of pain in making disability determinations.

On October 27, 1997, the court issued a decision on the State and Federal defendants' motions to reconsider its prior order in which it found that it had jurisdiction and to reconsider its prior order which granted partial summary judgment to plaintiffs. The court found that it had no ground in which to alter, amend or reverse its prior rulings. The court concluded that even in light of Blessing v. Freestone, 117 S. Ct. 1353 (1997), titles II and XVI of the Social Security Act do not, on the basis of their remedial schemes or Federal oversight of State agency determinations, preclude an action pursuant to 42 U.S.C. § 1983 to enforce proper standards under the Act. (In Blessing, the Supreme Court held that a plaintiff cannot bring an action under 42 U.S.C. § 1983 and sue a State defendant for its systematic failure to apply the Federal regulations and laws of a Federally funded program.) Furthermore, the court reaffirmed its conclusion that the Agency's regulations are internally inconsistent in the treatment of evidence of subjective pain in disability determinations, and thus, do not state the standard dictated by the decisions of the Eighth Circuit. The court also reaffirmed its conclusion that there is no genuine issue of material fact that the State defendant does not follow the proper standard in evaluating subjective pain evidence.

On April 2, 1999, the parties filed a jointly negotiated settlement proposal with the court. The proposal provided that, subject to certain exceptions, class members whose claims were denied by the Iowa Disability Determination Service at steps four or five of the sequential evaluation process, on or after December 17, 1994 and before January 1, 1999 and who did not appeal to OHA will receive a redetermination of their claims. On July 27, 1999, the court gave its preliminary approval to the parties' settlement agreement. Notice of the pending settlement agreement was published in The Des Moines Register. In addition, SSA posted notice of the proposal in the district offices where The Des Moines Register is not delivered. In addition, the district court posted the notice along with the proposed settlement agreement and amendment to the agreement on its website. On November 8, 1999, the court conducted a hearing on the fairness of the proposal, and, on November 10, 1999, the court finally approved the settlement agreement (see attachment).

III. Definition of the Class

  1. Subject to the exclusions in Part III B., Laird class members eligible to request relief are:

    1. All Iowa residents who:

      • received a final medical-vocational denial at step four or five of the sequential evaluation process in 20 CFR §§ 404.1520 and 416.920 by the Iowa DDS on or after December 17, 1994 through December 31, 1998 and

      • apply for title II and/or title XVI disability benefits within one year of January 9, 2000 (the effective date of the settlement order); and

      • receive a medical allowance on their application.

      NOTE:

      The settlement agreement became final on January 9, 2000. The last date to file an application for title II and/or title XVI disability benefits under this settlement agreement is January 9, 2001.

    2. any Iowa resident who has a claim for title II and/or title XVI disability benefits pending at any administrative level or in Federal court on January 9, 2000, who subsequently receives a medical allowance on that claim, and who had a prior application that meets the requirements in Part III. A. 1. (first bullet); or

    3. any Iowa resident currently receiving title II and/or title XVI disability benefits on January 9, 2000 and who had a prior application that meets the requirements in Part III. A. 1. (first bullet); or

    4. any Iowa resident who applies for title II and/or title XVI disability benefits within one year of January 9, 2000 and whose application is denied as res judicata at any administrative level and who had a prior application that meets the requirements in Part III. A. 1. (first bullet).

  2. A person is not a Laird class member eligible to request relief if he or she:

    • has already received a final subsequent award of benefits with respect to the same time period at issue in the class claim (Although the period at issue in the class claim can be prior to December 17, 1994, the adjudication of the class claim only had to occur on or after December 17, 1994 through December 31, 1998); or

    • appealed the denial of his/her class claim to an Administrative Law Judge (ALJ), the Appeals Council (AC) or to Federal court; or

    • received a subsequent disability determination after December 31, 1998 that adjudicated the same time period covered by the class claim; or

    • applied for childhood disability benefits, regardless of whether he or she applied under title II and/or title XVI; or

    • is not eligible for relief for reasons unrelated to disability.

IV. Processing Instructions

At the OHA level, the Laird settlement agreement does not require any difference in the processing of class member claims. OHA should follow the normal processing and adjudication procedures. In addition, unlike other class action processing instructions, OHA does not have any screening responsibilities pursuant to the settlement agreement and the consolidation of Laird claims with subsequent claims should not arise.

If the potential class member has a claim pending at any administrative level or in Federal court on January 9, 2000, and that claim is subsequently allowed, the potential class member will later be sent a notice that he or she may be entitled to a redetermination of the Laird period denial. The notice will include a reply card to request the redetermination.

V. Inquiries

Hearing Office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 605-8530. OHA Headquarters personnel should contact the Special Counsel Staff at 605-8250.

Attachment 1. Final Order Approving Settlement; Filed with the United States District Court for the Northern District of Iowa on April 2, 1999 and Approved by the Court on November 10, 1999.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
    [Filed April 2, 1999]
__________________________________________    
PAULA LAIRD, on her own Behalf )  
and on Behalf of all Others )  
Similarly Situated, )  
  )  
WILLIAM MEEKS, on his own Behalf )  
and on Behalf of all Others )  
Similarly Situated, )  
  )  
Plaintiffs, ) Civ. Action No.
  ) C95-3015
v. )  
TED STILWILL, in his Official Capacity )  
as Director of the Iowa Department of )  
Education, )  
  )  
Defendant, and )  
  )  
KENNETH S. APFEL, )  
COMMISSIONER OF SOCIAL SECURITY )  
  )  
Defendant/Intervenor )  
__________________________________________ )  
SETTLEMENT AGREEMENT

In the interest of resolving this action without the need for further litigation, with a mutual good-faith desire by the parties to work together to improve the disability determination process, and without any admission of liability by any party, the parties hereby agree to the following terms on which this action is to be fully and finally resolved.

DEFINITIONS AND GENERAL TERMS
  1. Definitions

    As used in this Agreement the following terms have the meaning specified below:

    1. “Class” means

      1. all Iowa residents who:

        1. apply for disability benefits under Title II, Title XVI, or both, within one year of the effective date of this agreement; and who

        2. receive a medical allowance on their application; and who

        3. received a final medical-vocational denial at steps four or five of the sequential evaluation process in 20 C.F.R. §§ 404.1520 and 416.920 by the Iowa DDS on or after December 17, 1994 through December 31, 1998; or

      2. any Iowa resident who has a claim for Title II and/or Title XVI benefits pending at any administrative level or in federal court on the effective date of the Settlement Agreement, who subsequently receives a medical allowance on that claim, and who had a prior application that meets the requirements of paragraph (a)(3) of the “Class” definition; or

      3. any Iowa resident currently receiving Title II and/or Title XVI benefits on the effective date of the Settlement Agreement and who had a prior application that meets the requirements of paragraph (a)(3) of the “Class” definition; or

      4. any Iowa resident who applies for Title II and/or Title XVI benefits within one year of the effective date of this Settlement Agreement and whose application is denied as res judicata at any administrative level, and whose prior application meets the requirements of paragraph (a)(3) of the Class definition.

      The class excludes those individuals who (1) have already received a subsequent award of benefits with respect to the same period of time at issue for the class claim; or (2) any individual who appealed an Iowa DDS denial identified in the “Class” definition to an administrative law judge, Appeals Council, or court; or (3) received a subsequent disability determination after December 31, 1998, that adjudicated the same time period covered by section (a)(3) of the “Class” definition; or (4) are not eligible for relief for reasons unrelated to disability.

    2. “Class Member” or “Member of the Class” means a person who falls within the definition of the Class.

    3. “Court” means the United States District Court for the Northern District of Iowa, Central Division.

    4. “Defendants” means and includes Ted Stilwill, Director of the Iowa Department of Education and Kenneth S. Apfel, Commissioner of Social Security (the “Federal Defendant”). The Defendants have been joined as parties only in their official capacities.

    5. “Effective Date” means the first date when the Settlement Agreement has become “Final.” In the preceding sentence, “Final” means the later of: (i) if no appeal from the Judgment is filed, the expiration of the time for the filing or noticing of any appeal from the Court's Judgment approving the Agreement (i.e., sixty (60) days after entry of the Judgment); (ii) if an appeal from the Judgment is filed, the date of final affirmance on an appeal from the Judgment, the expiration of the time for the filing of a petition for a writ of certiorari to review the Judgment, and, if certiorari is granted, the date of final affirmance of the Judgment following review pursuant to that grant; or (iii) the date of final dismissal of any appeal from the Judgment or the final dismissal of any proceeding on a writ of certiorari granted to review the Judgment.

    6. “Iowa DDS” means the Iowa Disability Determination Services.

    7. “Judgment” means the Judgment to be rendered by the Court approving the settlement pursuant to this Agreement.

    8. “Parties” means, collectively, the Defendants and Representative Plaintiffs and the Members of the Class.

    9. “SSA” means the Social Security Administration.

    10. “Representative Plaintiffs” means the named plaintiffs in this action.

    11. “Plaintiffs' Counsel” means the undersigned counsel for the Class.

  1. Policies and Procedures To Be Applied In The Redetermination Of Claims

    The parties agree that the policies and procedures to be applied in the redetermination of claims pursuant to this Settlement Agreement, as well as the adjudication of current claims under Title II and/or Title XVI, are found in the Social Security Act, Social Security regulations, Social Security Rulings (“SSRs”), and the Programs Operations Manual System (“POMS”). Claims will be adjudicated consistent with the Commissioner's regulations found at 20 C.F.R. §§ 404.1529 and 416.929; Social Security Rulings 96-3p, 96-7p and 96-8p; and Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted).

  2. Procedures For Processing Class Members Claims

    1. SSA shall promulgate instructions to all personnel charged with implementing this Settlement Agreement and shall provide Plaintiffs' Counsel with a copy of the instructions prior to their distribution. Plaintiffs' Counsel will also be provided copies of the notices referred to in paragraph A of Section III of this Settlement Agreement prior to distribution.

    2. All claims entitled to a redetermination pursuant to this Settlement Agreement will be redetermined at the reconsideration level with full administrative and judicial review rights under 42 U.S.C. 405(g).

  3. Identification Of And Notification To Class Members Potentially Eligible For Relief

    1. Mail Notice.

      1. Individuals who meet the definition of section (a)(3) of the “Class” definition shall receive by first-class mail, a notice inviting them to file a new application for benefits based on the provisions of this Settlement Agreement. If an individual applies for and receives benefits under Title II and/or Title XVI within the time limits prescribed in section (a) of the “Class” definition, SSA shall send the class member a request for review form which asks whether the class member wants a redetermination of his or her final medical-vocational denial, as defined in paragraph (a)(3) of the “Class” definition, from the Iowa DDS. The request for review form will be accompanied by a postage-paid, pre-addressed envelope. Individuals who meet the definition of paragraphs (b), (c), or (d) of the “Class” definition shall receive by first-class mail a notice explaining the applicable terms of this Settlement Agreement and a request for review form accompanied by a postage-paid, pre-addressed envelope.

      2. To receive a redetermination, a Class Member must return the request for review form within sixty (60) days of the date on which he or she receives the form. If a Class Member does not timely request review in accordance with this paragraph, the prior denial will not be redetermined absent a showing of good cause. SSA will presume that a Class Member received the request for review five (5) days after mailing, unless the Class Member establishes that he or she actually received the request for review at a later date, in which case the sixty (60) days to request redetermination shall be counted from the date of actual receipt.

    2. Poster Notice.

      Upon issuance of the Instructional POMS, the Federal Defendant shall prepare a poster notice. The posters shall inform Class Members of their potential right to redetermination of their claims under the terms of this Settlement Agreement. The Federal Defendant shall distribute posters to all SSA field offices in Iowa for posting in such offices. Posters shall remain in SSA field offices for a period of one hundred and eighty (180) days from posting. Class Members not receiving notice by mail shall notify the Federal Defendant in writing not later than ninety (90) days after the poster display period ends, if they desire to have a claim redetermined. The Federal Defendant shall provide to class counsel a reasonable supply of posters that class counsel may post in locations that Plaintiffs' Counsel determines would best reach potential class members during the same poster display period as in SSA field offices. Potentially eligible individuals who receive notice by first-class mail shall not be eligible to have the time period extended within which they must respond by responding to the poster notice.

  4. Prospective Relief

    1. Within ninety (90) days of the effective date of this Settlement Agreement, SSA and the Iowa DDS shall formulate and implement a plan to provide additional training to Iowa DDS personnel on SSA's policy. At a minimum, the training will include a discussion of the evaluation and articulation of credibility, subjective complaints, and the treatment of subjective complaints that are not fully supported by the objective evidence; including the Commissioner's regulations at 20 CFR §§ 404.1529 and 416.929; Social Security Rulings, 96-3p and 96-7p; and, Polaski v. Heckler, 739 F.2d 1320 (8th Cir 1984). The training will also include the evaluation and articulation of residual functional capacity including a discussion of Social Security Ruling 96-8p. Vocational training will also be conducted and will include Social Security Rulings, 82-41, 82-61 and 82-62. In addition, the defendants will create desk aids or reminder items to assist Iowa DDS disability examiners in making vocational determinations in difficult vocational cases.

    2. SSA will seriously consider Plaintiffs' Counsel input in setting the agenda for the training described in paragraph A of this section. SSA will notify Plaintiffs' Counsel of the above- described training at least one month in advance from the date the training is scheduled to take place. Upon request to SSA, Plaintiffs' Counsel, and/or their designee(s) may attend to observe such training sessions.

  5. Screening

    1. SSA shall decide whether an individual who requests a redetermination under any provision herein is entitled to relief under the “Class” definition based upon SSA's data processing systems and/or documentation submitted by the individual. If SSA decides that an individual who has requested a redetermination is not entitled to a redetermination, SSA shall send a notice of its decision to the individual, the individual's representative of record, if known, and to Plaintiffs' Counsel. The notice shall specify the reason(s) for SSA's decision not to redetermine the prior denial and will indicate that the individual should contact Plaintiffs' Counsel if he or she wishes to contest the decision and the time in which the decision must be contested.

    2. Plaintiffs' Counsel may request inspection of the claims file, data or documents relied upon by SSA in making a decision regarding whether a claimant is entitled to a redetermination. A request must be made in writing within sixty (60) days after the presumed receipt of the notification sent under section III, paragraph A of this section, and shall be sent both to:

      Federal Programs Branch
      Civil Division
      United States Department of Justice
      901 E Street, Room 1014
      Washington, DC 20530
      Attn: Laird Trial Attorney

      and

      Office of the General Counsel
      Social Security Administration
      601 E. 12th Street, Room 535
      Kansas City, Missouri 64106
      Attn: Laird Reviewer

      Materials obtained by Plaintiffs' Counsel pursuant to this paragraph may be used only for the purpose of pursuing the individual's claim pursuant to this Settlement Agreement, or as authorized by the individual. Plaintiffs' Counsel and counsel for the Federal Defendant shall arrange for a mutually agreeable time and place of inspection of the data, documents and claims file. If Plaintiffs' Counsel does not timely contest SSA's decision in paragraph A of this section, the individual shall not be entitled to the relief set forth in paragraph C of this section absent a showing of good cause.

    3. The parties shall negotiate in good faith to resolve any disputes concerning whether the individual is entitled to a redetermination. If counsel for the parties are unable to resolve a dispute, counsel for the Federal Defendant shall send to Plaintiffs' Counsel a written confirmation that an individual is not entitled to a redetermination. Plaintiffs' counsel may, by motion within sixty (60) days of the written confirmation, submit the unresolved matter to the Court for resolution.

  6. Case Review To Ascertain Possible Systemic Problems

    1. After one year from the effective date of this settlement agreement, plaintiffs' counsel may inspect the redeterminations made by the Iowa DDS pursuant to this Settlement Agreement during a continuous six-month period. Claims files will be made available for inspection at a mutually agreeable time at an office of SSA. Such inspection will be consistent with Privacy Act restrictions. The claims files may not be removed from the custody of SSA. Claims files must be reviewed within ninety (90) days after plaintiffs' counsel is notified that a claims file is available for inspection. Plaintiffs' counsel shall send written notification of any alleged pattern or misapplication of SSA policy that pertains to the claims settled by this Settlement Agreement. The notification will specify the case files upon which plaintiffs base their allegations and shall be sent both to:

      Federal Programs Branch
      Civil Division
      United States Department of Justice
      901 E Street, Room 1014
      Washington, DC 20530
      Attn: Laird Trial Attorney

      and

      Office of the General Counsel
      Social Security Administration
      601 E. 12th Street, Room 535
      Kansas City, Missouri 64106
      Attn: Laird Reviewer

    2. Within ninety (90) days of receipt of the written notification specified in paragraph A, SSA will review the case files identified by Plaintiffs' Counsel. The parties will negotiate in good faith to resolve any disputes. These negotiations will be the final mechanism for resolution of any dispute pertaining to any issues in this lawsuit.

  7. Reporting Requirements

    Beginning six months after the date that the Federal Defendant begins sending notices with request for review forms, the Federal Defendant shall file with the Court and provide to Plaintiffs' Counsel a copy of quarterly status reports setting forth the following information: (1) the number of notices with request for review forms mailed to the potential class members who were allowed on a subsequent application; (2) the number of all potential class members who have requested redeterminations pursuant to Section III of this Settlement Agreement; (3) the number of Iowa DDS claimants who have been determined by SSA to be members of the class eligible for relief; (4) the number of Iowa DDS claimants determined by SSA not to be members of the class; and (5) the number of allowances and denials in those redeterminations.

  8. Enforcement

    1. The Court will retain jurisdiction solely for the purpose of enforcing compliance with this Settlement Agreement. The parties will attempt to resolve any claim of material breach of this Agreement through negotiations. An attempt at informal resolution will be a prerequisite to any party's request for relief from the Court for an alleged material breach of this Agreement. A material breach, for the purpose of this Agreement, is defined as the failure by either party, without substantial justification, to perform a specific duty assumed under this Settlement Agreement.

    2. Before relief is sought from the Court, the following process will be used by the Parties:

      1. The party claiming that a material breach has occurred under this Agreement will, within thirty (30) days of its occurrence, give notice of the claim in writing to the other parties and will propose a resolution of the issue.

      2. The responding parties will have thirty (30) days following receipt of the written claim to respond, unless this period is enlarged by agreement of the Parties.

      3. If after thirty (30) days the party asserting the claim is dissatisfied with the responses or proposed resolution, or no response or proposed resolution has been forthcoming, the party asserting the claim may, after providing fourteen (14) days' written notice to opposing counsel, pursue relief before the Court consistent with terms of paragraph (A) above.

  9. Attorneys' Fees, Expenses and Costs

    Notice to the class, as required by the Court, shall be given at defendants' expense. Plaintiffs' Counsel are entitled to payment of reasonable attorneys' fees, expenses and costs in prosecuting this action for work that materially advanced the litigation, consistent with applicable legal standards. In the event that the parties cannot agree to the amount of reasonable attorneys' fees, expenses and costs as defined above, plaintiffs shall file a fee application to the Court within ninety (90) days of the effective date of this Agreement.

  10. Dismissal Of The Action

    Upon final approval of this Agreement, and subject to Section VIII above, the above- captioned action shall be dismissed with prejudice. The relief set forth in this Agreement constitutes full and final relief for all Class Members for claims set forth in the plaintiffs' complaint, as amended, or arising from the facts set forth in the complaint, as amended, including but not limited to the claims listed on the attached Exhibit A (Plaintiffs' First Amended and Supplemented Complaint), up to and including the effective date of this Agreement.

  11. Protective Orders

    1. The protective orders entered by the Court on January 22, 1998, and May 20, 1998, shall remain in effect following the dismissal of the lawsuit, and Plaintiffs' Counsel shall not be required to return or destroy documents covered by those protective orders. Future use of documents covered by the foregoing protective orders shall be limited to resolving questions regarding any issue in this lawsuit. Documents covered under all other protective orders entered by the Court prior to January 22, 1998, shall be destroyed 60 days after the Effective Date of this Settlement Agreement, and the terms of those protective orders shall remain in effect until such documents are destroyed.

    2. The parties jointly agree to move the Court for a protective order(s), as appropriate, to carry out the obligations of the parties under this Settlement Agreement.

  12. Miscellaneous Provisions

    1. Recertification Of Class

      Promptly after execution of this Agreement, but in no event later than ten (10) days after the Agreement is signed by counsel for all Parties (unless such time is extended by the written agreement of Plaintiffs' Counsel and Defendants' counsel), Plaintiffs' Counsel will move the Court to certify a class consistent with the “Class” definition in this Settlement Agreement, and to vacate the Court's prior order (J. Bennett (April 25, 1995)) that conditionally certified a class, defined differently than the “Class” definition, in this action.

    2. Notice Order and Settlement Hearing

      Promptly after execution of this Agreement, but in no event later than ten (10) days after the Agreement is signed by counsel for all Parties (unless such time is extended by the written agreement of Plaintiffs' Counsel and Defendants' counsel), Plaintiffs' Counsel will submit the Agreement to the Court and will apply for entry of an order (the “Notice Order”) requesting: (a) preliminary approval of the settlement set forth in this Agreement; (b) approval of a Notice which shall include the general terms of the settlement set forth in this Agreement for the benefit of Members of the Class, as well as approval of the method of giving notice of the settlement to the Class ; and (c) that the Court set the date for a hearing (the “Settlement Hearing”) at which the Court will consider approval of the settlement.

      The Parties will request that the Notice Order specifically include the following provisions:

      1. Preliminarily approve this Agreement and the settlement set forth herein as being fair, just, reasonable and adequate to the Class;

      2. Approve the form of Notice of Pendency and Settlement of Class Action (“Notice”), as well as the proposed method of giving notice to the Members of the Class by means of publication of the Notice in the Des Moines Register on one occasion;

      3. Find that such Notice constitutes the best notice practicable under the circumstances, and constitutes valid, due and sufficient notice to all Members of the Class, complying fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, and any other applicable law;

      4. Schedule the Settlement Hearing to be held by the Court to determine if the proposed settlement of the litigation as contained in this Agreement should be approved as fair, reasonable and adequate and whether the Judgment approving the settlement should be entered;

      5. Provide that pending final determination of whether the settlement contained in this Agreement should be approved, neither the Representative Plaintiffs, nor any Class Member, either directly, representatively, or in any other capacity will commence or prosecute any action or proceeding in any court or tribunal asserting any of the class claims against the Defendants;

      6. Provide that any objections to: (i) the proposed settlement contained in this Agreement; or (ii) entry of the Judgment approving the settlement shall be heard only if, on or before a date specified in the Notice Order, persons making objections file and serve on all Parties notice of their intention to appear (which will set forth each objection and the basis therefor) and copies of any papers in support of their position as set forth in the Notice Order; and

      7. Provide that the Settlement Hearing may, from time to time and without further notice to the Class, be continued or adjourned by order of the Court.

    3. Collateral Use of Agreement Prohibited

      The Parties to this action have entered into this Settlement Agreement as a compromise measure to terminate this action and resolve all issues of controversy between them. This Agreement does not constitute an admission of the merits of any position taken by any party to this litigation, nor of any liability by the Defendants for the violation of any law, statute, regulation, or policy, and it may not be introduced or used in proceedings other than this action. The substance of the negotiations leading up to the Settlement Agreement and the information exchanged by the Parties in the course of those negotiations may not be offered, taken, construed or introduced as evidence for any purpose, either in this action or in any pending or subsequent proceeding of any nature.

    4. Entire Agreement

      This Agreement constitutes the full and exclusive agreement of the Parties with respect to the matters discussed herein, and supersedes all prior agreements, written or oral, with respect to such matters. No representations or inducements to compromise this action have been made, other than those recited in this Agreement.

    5. Headings

      The headings in this Agreement are for the convenience of the Parties only and shall not limit, expand, modify, or aid in the interpretation or construction of this Agreement.

    6. Counterparts

      This Agreement may be executed in one or more counterparts and each executed copy will be deemed an original that is binding upon all Parties.

/s/
THOMAS A. KRAUSE
6959 University Avenue
Des Moines, Iowa 50311
(515) 277-4727
Plaintiffs' Counsel

Date: 4/1/99

/s/
RICHARD G. LEPLEY
DAPHENE R. McFERREN
Department of Justice
Federal Program Branch
Civil Division, Room 1014
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 616-5084
Attorneys for the Commissioner of Social
Security

  Date: March 31, 1999

/s/
CHRISTIE J. SCASE
Assistant Attorney General
Hoover State Office Building
Des Moines, Iowa 50319
Attorney for the Director of the Iowa
Department of Education

Date: 4/1/99

Of Counsel:

Martha A. Fagg
Assistant United States Attorney
P.O. Box 3629
Sioux City, Iowa 51102

Frank V. Smith III
Chief Counsel, Region VII
Social Security
Administration
Jamie G. Crawford
Assistant Regional Counsel