John Broz, Plaintiff-appellee, v. Margaret M. Heckler, Secretary of Health & Human Services, Adepartment of the United States Government,defendant-appellant.richard D. Holmes, Plaintiff-appellee, v. Margaret M. Heckler, the Secretary of Health and Humanservices, Defendant-appellant.corrine Little, Plaintiff-appellee, v. Margaret M. Heckler, Secretary of the Department of Healthand Human Services, Defendant-appellant.thomas O. Jones, Plaintiff-appellee, v. Margaret M. Heckler, Secretary, Department of Health Andhuman Services, Defendant-appellant.fred Soesbe, Plaintiff-appellee, v. Margaret M. Heckler, Secretary of Health and Human Services,defendant-appellant, 725 F.2d 1280 (11th Cir. 1984)

BY THE COURT:

On numerous appeals pending in this court and awaiting decision of this case, counsel have been invited to consider and comment on whether in their respective case(s) the Secretary might have denied benefits because she relied on age as a categorical factor rather than making an individualized determination about the claimant's ability to adapt to a new work environment.

In pending cases in which counsel have not previously been invited to do so, they are invited to file comments no later than April 2, 1984. To aid in its consideration the court would like information concerning whether, given the claimant's physical ability, education, and work experience (as determined by the Secretary or as alleged on appeal by the claimant), the regulations deny assistance to a person in the claimant's age group but grant assistance to a person in an older age group. The court also desires a statement addressing whether the claimant can establish that his diminished capacity to adapt to a new work environment is equivalent to that which the regulations presume persons in an older age to have.

Comment by a claimant should include the following information:

(1) The Secretary's classification of the claimant's physical ability, education, and work experience and, where the claimant disputes the Secretary's classification, the allegedly proper classification.

(2) The claimant's age.

(3) Whether, given the classification in (1), the current regulations deny assistance to a person in the claimant's age group but grant assistance to a person in an older age group.

(4) Whether the claimant can establish that his diminished ability to adapt to new jobs because of his age is the equivalent of that which persons in an older age group are presumed by the regulations to have.

After April 2, 1984, counsel are responsible for raising on their own motion the issue of the Secretary's treatment of age as a categorical factor. The mandate in this case is withdrawn for the purpose of issuing this order. The mandate will be re-issued forthwith.