Petition — Califano v. White

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| Susreme Court, U. $,

FILED

DEC 151977

: L_MICHAEL p

Novy-sa6 ti

Gu the Supreme Gourt of the Cnited S

OcToBER TERM, 1977

JosEPH A. CALIFANO, JR., SECREYARY OF HEALTH,

EDUCATION, AND WELFARE, PELITIONER

GEORGE WHITE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

WADE H. McCREE, Jr.,

Solicitor General,

BARBARA ALLEN BABCOCE,

Assistant Attorney General,

SARA SUN BEALE,

Assistant to the Solicitor General,

WILLIAM KANTER,

JOHN M. ROGERS,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

Opinions below_-------------------------------------- 1

Jurisdiction <..<<<<cccnccccnewoncccooecescoesecccescce 2

(Questions presented a a a a a a a rrr eee 2

Statutory provisions involved_------------------------- 2

Statement ........-.-..--- 2-2 on oo on ooo o-oo J.

Reasons for granting the petition----------------------- 8

ConclusiO® ..<<<cecccccccccecececocecccocssecccesscess 17

Apppendix A_---------------------------------------- 1A

Appendix B_.---------------------------------------- 19A

Appendix C_.---------------------------------------- 21A

Appendix D_.---------------------------------------- 41A

Appendix E-------- me cnccnocecoccccccescoeses seoeces - 46A

CITATIONS

Cases:

Barnett v. Califano, D. Vt. No. 74-270, decided Febru-

ary 22, 1976, C.A. 2, No, 77-6160_._--------------- 9,10

Blakenship v. Mathews, W.D. Ky., No. C 75-O185L

(A). decided May 6, 1976, appeal pending, C.A. 6,

i 8 a eee 9,10

Califano v. Sanders, 480 By 4,17

Caswell y. Califano, 435 F. Supp. 127, appeal pending,

C.A. 1, No. Tt-1514....-..2---2200-0----- ooo ooo 10

Federal Communications Commission v. Pottsville

Brodacasting Ca... 390 UB. (Bb. nanesnccececessecs 17

F vost ¥. Weinhe rqger, DLS F. at | nT. certiorari denied,

one TG. Ge. _. .. .neccndnincsnincusdeuannnnaenncen 16

Mathews v. Eldridge, 424 U.S. 319_------------- 4,6, 15,16

Norton v. Mathews. 427 U.S. 524.-.----------------- 17

(I)

Cases—Continued

Red Lion Broadcasting Co. vy. Federal Communications

Commission, 395 U.S. 367_...............________-

Weinberger v. Salfi, 422 U.S, 749_-.---------

Wright v. Califano, N.D. Il., No. 75-C-1537, decided

gS Bre See SE Ce ee

Constitution, statutes and regulations:

United States Constitution, Fifth Amendment, Due

SN Tritt ddtktintidnecnasediensctiddnsens

Federal Coa] Mine Health and Safety Act of 1969, Sec-

tion 414(b), 83 Stat. 745, as amended by the Black

Lung Benefits Act of 1972, Section 5(1), 86 Stat.

155, 30 U.S.C. (Supp. V) 924(b)_.-.-----...-----

Social Security Act, 49 Stat. 624, as amended, 42 U.S.C.

(and Supp.V) 401 ef seq.:

Section 205. U.S.C. (and Supp. V) 405___-------

Section 205(b), 42 U.S.C. (Supp. V) 405(b)-----

4.8.11,

Section 205(g), 42 U.S.C. 405(@)--------------

Section 205(h), 42 U.S.C. 405(h)__------ 3. 8, 15,

Section 205(1), 42 U.S.C. (Supp. V) 405(i)------

Section 1601, 42 U.S.C, (Supp. V) 1381 et seg.---

Section 1631(c)(2), 42 U.S.C. (Supp. V)

Pub. L. 94-202, 89 Stat. 1135___..-.-.._..--

Re oe Oe ee

Miscellaneous :

Center for Administrative Justice, Final Report:

Study of the Social Security Administration Hear-

SO TE Gree Poncnkessenadenenenoncantatedd

Ifearings on Delays on Social Security Appeals before

the Subcommittee on Social Security of the House

Committee on Ways and Means, 94th Cong., 1st Sess.

GRNUEE obanccocescccncussenceecsnanssoeneteseen

H.R. 1518, %th Cong., Ist Sess. (January 6, 1977) ____

IL.R. 2394, 95th Cong., Ist Sess. (January 26, 1977) ___

11.R. 2671, 95th Cong., Ist Sess. (January 31, 1977) ___

H.R. 2815, 95th Cong., 1st Sess. (February 1, 1977) ___

ILR. 4303, 95th Cong., Ist Sess. (March 2, 1977)

Page

lll

Miscellaneous—Continued

ILR. 5072, 95th Cong., Ist Sess. (March 15, 1977)----

H.R. 5151, 95th Cong., 1st Sess. (March 16, 1977) ----

HLR. 5656, 95th Cong., Ist Sess. (March 28, 1977) -----

H.R. 5723, 95th Cong., Ist Sess. (March 29, 1977) -----

HLR. 6495. 95th Cong., Ist Sess. ( April 21, 1977) ------

H.R. 8076, 95th Cong.. Ist Sess. ( April 28, 1977) ------

ILR. Rep. No. 94-679, 94th Cong., Ist Sess. (1975) ---

Operational Analysis of the Bureau of Hearings and

Appeals, Department of Health, Education, and

Welfare. Social Security Administration (1977)

(BHA Publication No. 032 (6-77) )--------------

Report of Staff of House Subcommittee on Social Secu-

rity of the House Committee on Ways and Means

Appeals Process: Areas of Possible Administrative

or Legislative Action, 4th Cong., Ist Sess, (Comm.

ee eames

Page

13.15

i) |

Gu the Supreme Court of the Guited States

OcToBER TERM, 1977

No.

JoserH A, CaLirano, JR., SECRETARY OF HEALTH,

Epucatioy, AND WELFARE, PETITIONER

Uv.

GEORGE WHITE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the Secretary

of Health, Education, and Welfare, petitions for a

writ of certierari to review the judgment of the

United States Court of Appeals for the Second

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, im-

fra, pp. 1A-18A) is reported at 559 F. 2d 852. The

opinion of the district court (App. C, infra, pp.

2ITIA—-40A) is not reported.

2) a1)

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 19A) was entered on July 18, 1977. On Oc-

tober 6, 1977, Mr. Justice Marshall extended the time

for filing a petition for a writ of certiorari to and

including November 15, 1977, and on November 8,

1977, he further extended the time to and including

December 15, 1977. The jurisdiction of the Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether applicants for disability benefits under

Title II of the Social Security Act are entitled by

statute to an administrative hearing within the fixed

periods of time arbitrarily set by the district court.

2. Whether the district court had jurisdiction over

this case under 28 U.S.C. 1361, notwithstanding the

jurisdictional bar imposed by Section 205(h) of the

Social Security Act.

STATUTORY PROVISIONS INVOLVED

Section 205 of the Social Security Act, 49 Stat. 624,

as amended, 42 U.S.C. (Supp. V) 405, provides in

pertinent part:

(b) The Seeretary is directed to make find-

ings of facts, and decisions as to the rights of

any individual applying for a payment under

this subchapter. Upon request by any such in-

dividual or upon request by a wife, divorced

wife, widow, surviving divorced wife, surviving

divorced mother, husband, widower, child, or

parent who makes a showing in writing that his

or her rights may be prejudiced by any decision

the Secretary has rendered, he shall give such

applicant and such other individual reason-

able notice and opportunity for a hearing with

respect to such decision, and, if a hearing is

held, shall on the basis of evidence adduced

at the hearing, affirm, modify, or reverse his

findings of fact and such decision. Any such

request with respect to such a decision must

be filed sixty day after notice of such deci-

sion is received by the individual making such

request. The Secretary is further authorized, on

his own motion, to hold such hearings and to

conduct such investigations and other proceed-

ings as he may deem necessary or proper for

the administration of this subchapter. In the

course of any hearing, investigation, or other

proceeding, he may administer oaths and affir-

mations, examine witnesses, and receive evi-

dence. Evidence may be received at any hearing

before the Seevetary even though inadmissible

under rules of evidence applicable to court

procedure.

(h) The findings and decisions of the Secte-

tary 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 pro-

vided. No action against the United States, the

Secretary, or any officer or employee thereof

shall be brought under section 41 of Title 28

to recover on any claim arising under this

subchapter.

STATEMENT

1. Section 205(b) of the Social Security Act, 42

U.S.C. (Supp. V) 405(b), requires the Secretary of

Health, Education, and Welfare to provide claimants

with “reasonable notice and [an] opportunity for a

hearing” with respect to “decisions as to the rights of

any individual applying for a payment” of Social Se-

curity benefits. Pursuant to this statute, the Secretary

has provided that when an initial decision is made to

deny or terminate benefits, a claimant may obtain ad-

ministrative review at three levels: reconsideration ;

an evidentiary hearing before an Administrative Law

Judge (ALJ); and final review by the Appeals Coun-

ceil, 20 C.F.R. 404.901 to 404.955. After exhausting

these administrative remedies, a claimant may secure

judicial review in a federal district court under Sec-

tion 205(g¢) of the Act. See generally Mathews vy.

Eldridge, 424 U.S. 319, 338-339; Califano v. Sanders,

430 U.S. 99, 101-102.

The large backlog in pending claims has resulted in

significant delays in the process of administrative re-

view, and these delays have been particularly pro-

nounced at the second level or review, U@, between a

claimant's request for a hearing before an ALJ and

issuance of the ALJ’s decision following such hear-

ing, See Mathews v. Eldridge, supra, 424 U.S. at 34i-

342. The backlog has been swollen by what the court

of appeals aptly deseribed as ai “flood” of new

claims immediately following the enactment of legis-

lation establishing the black lung and supplemental

security income programs (App. A, infra, p. 13A).?

As the court of appeals further noted, the Secretary

has encountered difficulties in increasing the hearing

staff, and “legislative obstacles” have hindered the ef-

ficient use of available hearing officers (ibid.; see

generally, App. E, infra, pp. 46A-57A for a brief

description of these problems).’

* Section 414(b) of the Federal Coal Mine Health and Safety

Act of 1969, 83 Stat. 745, as amended by Section 5(1), of the Black

Lung Benefits Act of 1972, 86 Stat. 155, 30 U.S.C. (Supp. V) 924

(b) gave the Social Security Ad-ainistration temporary juris-

diction over the black lung program (covering only claims filed

before June 30, 1973), resulting in 113,707 requests for hearings

through fiscal year 1976. The workload of the Administration's

Bureau of Hearings and Appeals (BHA) was again increased

when the supplemental security income (SSI) program went into

effect on January 1, 1974. See 42 U.S.C. (Supp. V) 1381 et seg.

Meanwhile, the number of requests for hearings before BHA in-

creased sharply from 42,573 in fiscal year 1970 to 121,504 in fiscal

year 1974 when respondent filed this action. See Operational Anal-

ysis of the Bureau of Hearings and Appeals, Department of

Health, Education, and Welfare, Social Security Administration

28 (1977) (BHA Publication No. 032(6-77)). Requests for hear-

ings rose to 154.962 in fiscal year 1975 (/bid.), and we are in-

formed by the Secretary that there were 193,829 requests in fiscal

1977.

* These factors contributed to a backlog that reached an all-time

high of 113.000 pending requests for hearings in April 1975 (App.

FE, jafra, p. 51A). Various measures, including the hiring of addi-

tional ALJs, support personnel, and professional support staff, re-

sulted in an increase in the average number of dispositions per ALJ

during a four-week period from 14.8 in the Fall of 1974 to 27 by

March 1977. These measures, which are more fully described in

Appendix FE, ‘nfra, helped to reduce the number of pending cases

to 81.500 in January 1977. We are informed by the Secretary,

however, that new hearing requests, which reached a record high

of 18,000 per month in March 1977, had increased the number of

pending cases again to 91,143 by the close of fiscal year 1977.

51-572—77 2

2. Respondent George White initially was awarded

disability benefits beginning in January 1973 (App.

A, infra, p. 3A). When the responsible state agency *

reexamined the case, however, it found that respond-

ent’s disability had ceased in November 1973 and

that his benefits therefore should be terminated as of

January 1974 (id. at 3A-4A; see Mathews v. Eldridge,

supra, 424 U.S, at 338). The Social Security Adminis-

tration affirmed that determination upon reconsidera-

tion. Thereafter, on July 29, 1974, respondent re-

quested a hearing before an ALJ (id. at 4A). The

hearing was held on April 29, 1975, and on May 21,

1975, the ALJ issued a decision adverse to respondent

(ibid.). In December 1575, the Appeals Council, find-

ing that respondent’s disability had not ended, re-

versed the ALJ and restored his benefits retroactively

(ibid.).

In the meantime, however, in January 1975, re-

spondent had filed this action in the United States

District Court for the District of Connecticut, seeking

declaratory and injunctive relief against the delay in

the scheduling of his hearing (ibid.). In March 1975,

respondent moved for certification of the suit as a

class action (ibid.). On July 18, 1975, after respond-

ent had received the ALJ’s decision, the district court

certified a class of “all potential Social Security Dis-

ability recipients, who have pending petitions for a

* Continuing eligibility investigations are conducted by a state

agency, whose determination is reviewed by an examiner in the

Social Security Administration’s Bureau of Disability Insurance.

See Mathews v. Eldridge, supra, 424 U.S. at 337-338.

hearing before the Administrative Law Judge and

have not had e hearing scheduled promptly and the

matter concluded within a reasonable time” (id. at

4A, n. 4).

Following cross-motions for summary judgment,

the district court ruled that it had jurisdiction under

28 U.S.C. 1361 and that the case was not moot (App.

C, infra, pp. 29A-35A). The court found that the av-

erage time between request for a hearing before an

ALJ and entry of the ALJ’s decision for the period

of January 1973 through March 1975 was 211.8 days

for residents of Connecticut and 195.2 days nationally,

and it held that these delays were unreasonable and

violative of the Social Security Act, the Administra-

tive Procedure Act, and the Due Process Clause of

the Fifth Amendment (App. C, infra, pp. 21A-24A,

39A).

The district court entered an order limiting the

maximum delays between requests by Connecticut

residents for a hearing and the corresponding ALJ

decision to 180 days by July 1, 1977; to 150 days by

December 31, 1977; and to 120 days by July 1, 1978

(App. A, infra, p. 5A; App. D, infra, pp. 41A-45A).*

The order also provided that in any ease in which the

claimant had not received a final decision within the

period specified, the Secretary was required to pay

* The order provided for an exception from these time periods if

the ALJ determined after the hearing that further medical evi-

dence was necessary, or if the claimant failed te appear for a hear-

ing, requested a delay, or caused a delay by his failure to provide

essential evidence (App. D, iafra, p. 42A-43A).

benefits to the claimant until a decision was rendered

(App. D, infra, p. 438A).

The court of appeals affirmed (App. A, infra, pp.

1A-18A). It held that the district court had juris-

diction under 28 U.S.C. 1361, notwithstanding the

jurisdictional bar of Section 205(h) of the Social

Security Act, 42 U.S.C. 405(h), and it rejected the

Secretary’s contention that the case had become moot

when respondent was afforded a hearing (App. A,

infra, pp. 5A-10A). The court recognized both the ad-

ministrative problems confronting the Social Security

Administration and the efforts made by the Secretary

to reduce hearing delays, but it concluded that Section

205(b) of the Act authorized the imposition of man-

datory deadlines and that claimants could not be

forced to bear the burden of the delays that per-

sisted despite the Secretary’s efforts (id. at 13A-

14A). The court also sustained, as a_ proper

exercise of remedial power, the district court’s order

requiring the Secretary to pay benefits pending the

ALJ’s decision in cases where the deadline impused

by the court is not met (7d. at 17A). The court de-

clined to decide whether the hearing delays violated

either the Administrative Procedure Act or the Due

Process Clause’ (id. at I8A, n. 14).

REASONS FOR GRANTING THE PETITION

The decision in this case, especially when considered

together with like decisions in similar pending cases,

threatens significantly to disrupt the Secretary’s

ability to administer the Social Security Act nation-

wide in an even-handed and orderly manner. The

administration of the claims procedure established

by the Act has been delegated to the Secretary, not

to the courts; the remedying of lapses of efficiency

in, or of inadequacies in resources for, the general

operation of the claims procedure is a matter that is

properly reserved to the political process, not the

judicial process. The decision below represents an

intrusion into the administrative province and inter-

ference with the responsibilities of the political

branches that warrants this Court’s review on

certiorari,

1. a. The Secretary, no less thna the courts below,

is concerned about the hards’.ips that individuals

with meritorious claims may suffer between the time

of their request for a hearing and a favorable de-

cision by the ALJ following the hearing. The court's

imposition of a mandatory timetable for hearings,

however, will only result in making an undeniably

difficult situation far worse.

The practical result of the decision below will be to

require the Secretary to give claiinants in Connecticut

priority over claimants in neighboring states, whose

hearings as a consequence will be delayed even longer

than before. Moreover, this case is one of a number

of pending cases in which claimants seek to challenge

delays in the administrative process.’ In a number of

8 Barnett v. Califano, D. Vt.. No. 74-270, decided February 22,

1976, appeal pending, C.A. 2. No. 77-6166; Blankenship v.

Mathews, W.D. Ky. No. 75-0185 L(A), decided May 6, 1976,

appeal pending, C.A. 6, No, 76-2342; Boyle v. Califano, C.D.

these cases, the courts have devised timetables for the

Secretary's adjudication of claims within a particular

geographic area; the mandatory time limits vary from

case to case, and in some cases, as here, they are ac-

companied by orders that the Secretary commence

paying benefits when the deadline is not met.’ As a

Cal., No. 77-O466ALS; Caswell v. Califano, 435 F. Supp.

127 (D. Me.). appeal pending. C.A. 1. No. 77-1514: Deloney

v. Mathers, N.D. Til. No. 74-2989: Diron v. Guern, N.D.

Ill.. No. 77-C-1125: Etier v. Califano, N.D. Cal., No. T7-0520-

WHO: Ferguson vy. Califano, C.D. Cal. No. 75-2620-RF;

Finch v. Califano, W.D. Ky.. No. 76-O441L: Harris v Califano,

N.D. Ga.. No. 75-1591 A: Huntzman v. Califano, E.D, Pa.. No. 74-

2409: Martinez v. Califano, E.D.N.Y., No. 73-C-900; Mills v. Cali-

fano, N.D. Cal., No. 77-1094-WTS: Quintana v. Califano, D.N.M..

No. 77-622-M: Santos v. Mathers, D. Mass., No. 75-166G ; Soper

v. Mathers, D. Mass... No. 76-3174-G: Sturail/ v. Mathers, ELD.

Ky., No, 75-288; Wright v. Califano, N.D. Ill., No. 75-C-1537. de-

cided November 17, 1977.

*In Blankenship v. Matherrs, supra, the district court ordered

hearings in Title II and certain SSI cases in Kentucky within ™)

days of request beginning February 1, 1977. In Barnett vy. Cali-

fano, supra, the court ordered hearings in Vermont SSI cases

within 120 days of request beginning July 1, 1977. and within 9)

days beginning January 1, 1978, and payment where hearing re-

quirements are not satisfied. In Casire/] v. Califano, supra, the

court ordered hearings in Maine Title IT cases within 120 days

of request by December 31, 1977. and within ® days by July 1.

1978. In Wright v. Califano, supra, the district court ordered hear-

ing decisions in non-disability Title II cases in Illinois, Indiana,

Michigan, Minnesota, Ohio, and Wisconsin within 180 days from

request for hearing by January 1, 1978, within 120 days by July 1.

1978, and within 90 days by January 1, 1979. with identical relief

for the period of time from request for Appeals Council review

to final Appeals Council decision, and the order provides that

eligibility is to be presumed where the deadline is not met.

result, the Secretary's efforts to process claims more

efficiently nationwide are being made increasingly dif-

ficult by a growing patchwork of conflicting time re-

quirements. [f this decision is permitted to stand, the

situation is likely to grow steadily worse, both because

of the precedential effect of the Second Cireuit’s

opinion and because claimants in jurisdictions where

no action has yet been brought may be forced to bring

suit to prevent the subordination of their claims to

those of claimants already protected by court-ordered

time limits.

b. Section 205(b) of the Social Security Aet—upon

which the court of appeals rested its decision—does

not justify imposing such an administrative night-

mare. Section 205(b) requires only that claimants who

disagree with a determination of the Secretary be

afforded “reasonable notice and opportunity for a

hearing.” It establishes no timetable for holding a

hearing or rendering a decision after a hearing.

When Congress has wished to impose such time

limits, it has done so expressly. For example, Congress

has specified that determinations of entitlement to

SSI benefits should be made within 90 days after the

request for the hearing, except in cases involving a

claim of disability. See Section 1631(¢)(2) of the Act,

42 U.S.C. (Supp. V) 1383(¢) (2). Prompt action with

respect to claims for SSI benefits is important be-

cause entitlement to such benefits is based upon need;

even in this context, however, Congress has recognized

that questions relating to disability cannot always be

promptly resolved.

With respect to benefits not based upon need, such

as the Title I] benefits sought by respondent, even

though Congress has been fully apprised of the hear-

ing delay problem, it has explicitly refused to impose

deadlines. In September and October 1975, the House

Subcommittee on Social Security held extensive hear-

ings on the problem of hearing delays. Hearings on

Delays in Social Security Appeals before the Sub-

committee on Social Security of the House Commit-

tee on Ways and Means, 94th Cong., Ist Sess., p. 2

(1975). As a solution to the problem, Representa-

tive Seiberling proposed that the Secretary be re-

quired to render a final decision within 120 days of a

claimant’s request for a hearing, but the staff of the

Subcommittee cautioned against such an approach

(Report of Staff of House Subcommittee on Social

Security of the House Committee on Ways and Means,

Appeals Process: Areas of Possible Administrative

or Legislative Actions, 94th Cong., Ist Sess., pp. 1-2

(Comm. Print 1975)):

The appeals crisis is almost wholly the creature

of the social security and SSI disability pro-

* Thus, even if respondent had been claiming SSI rather than

Vitle TL benefits, he would not have been entitled to a decision

within a fixed period of time, for his claim presents a question of

disability.

grams and although mandating by statute cer-

tain processing time limits might seem on the

surface a desirable thing to do, such legislation

might also have an adverse effect on the quality

and uniformity of disability adjudication which

is already somewhat suspect.

The Committee later favorably reported on, and

Congress passed, Pub. L. 94-202, 89 Stat. 1135,

which dealt with the backlog problem by authorizing

the Secretary to utilize SSI and black lung hearing

examiners to hear Title II cases as necessary, but did

not set deadlines for decisions in such cases. See

H.R. Rep. No. 94-679, 94th Cong., Ist Sess., p. 4

(1975).

Nowhere in this legislative history is there a sugges-

tion that Congress believed that it already had pro-

vided for the equivalent of such deadlines in Section

205(b). Cf. Red Lion Broadcasting Uo. vy. Federal

Communications Commission, 395 U.S. 367, 380-381."

* Moreover, the portion of the decision below that requires pay-

ment of benefits to begin if the Secretary does not meet the court-

imposed deadline contravenes a second expression of congressional

intent. Section 205(i) of the Act requires that there be a “final

decision” or “final judgment” that a claimant “is entitled to [a]

payment” before certification for benefits. The court’s order in

this case requires benefits to be paid even though entitlement is

not yet established. Although the order provides that such pay-

ments are subject to later recoupment, as a practical matter it

is unlikely that many of these payments could be recovered. See

Mathews v. Eldridge, supra, 424 U.S. at 347. Accordingly, such

payments would constitute an unauthorized drain on the Social

Security Trust Funds at a time when their solvency is a matter

of public concern. Indeed, the prospect of such payments might

encourage the filing of groundless claims, which would aggravate

the situation further.

251-572—77——3

Section 205(b) imposes no deadlines either explicitly

or by implication; in devising and imposing deadlines

of their own, the courts below departed from the stat-

ute and from the evident congressional intention that

the problem of hearing delays be resolved by the legis-

lative and executive branches rather than by judicial

fiat.

e. Congress chose not to adopt a mandatory time-

table in part because artificial time limits pose a

threat to the quality of adjudication. In over half of

the approximately 200,000 hearings annually held by

the Bureau of Hearings and Appeals, the claimants

are not represented by counsel. In such cases, the

ALJ is charged with the time-consuming responsi-

bility of developing a full record, including obtaining

evidence not presented by the claimant. In disability

cases in particular, medical records must be obtained

and examinations or testimony by medical or voca-

tional specialists may have to be conducted or re-

ceived. Establishment of fixed time limits could have

a serious adverse impact on the accuracy of the deter-

minations based upon such proceedings, harming

some claimants who are truly disabled and granting

windfalls to some undeserving claimants who may

profit from the agency’s need to act in haste. The

courts below should have deferred to the legislative

judgment that these considerations make the imposi-

tion of arbitrary deadlines inadvisable.

The judicial imposition of time limits was particu-

larly inappropriate in view of the fact that Congress

is continuing to study the problem.’ Indeed, in the

current Congress at least 11 bills that deal in one way

or another with the hearing delay problem have been

introduced.” This continuing legislative activity

further indicates that Congress does not believe that

Section 205(b) bears meaningfully upon the problems

of backlog and delay that are faced by claimants and

the Secretary alike.

2. In any event, the district court lacked jurisdic-

tion to hear his case. Section 205(h) of the Act

provides :

No findings of fact or decision of the Secretary

shall be reviewed by any person, tribunal, or

*The House Committee on Ways and Means recommended

that the Social Security Administration authorize the Center for

Administrative Justice to initiate a study of the existing appeals

procedure in order to recommend possible structural changes in

the existing system and has indicated that the Committee will con-

sider the appeals process in this session of Congress. H.R. Rep.

No. 94-679, 94th Cong., 1st Sess., p. 2 (1975). This study, which

was completed in October of 1977, concludes that “the basic causes

of the backlog * * * and the resultant delay[s] are increasing

demand[s] for hearings without a corresponding increase in the

resources available to process the cases.” Center for Administra-

tive Justice, Final Report: Study of the Social Security Admin-

istration Hearing System xix (1977). The report cautions that

“[s]ubstantial changes to speed decisionmaking, other than the

commitment of more resources to the task, almost always run the

risks of lowerir.g the quality of the process in other respects” (id.

at xx; see also p. 11).

%° H.R. 1518, 95th Cong., 1st Sess. (January 10, 1977); H.R.

2394 (January 26, 1977); H.R. 2671 (January 31, 1977); H.R.

2815 (February 1, 1977) ; H.R. 4303 (March 2, 1977) ; H.R. 5072

(March 15, 1977); H.R. 5151 (March 16, 1977); H.R. 5656

(March 28, 1977) ; H.R. 5723 (March 29, 1977) ; H.R. 6495 (April

21, 1977) ; H.R. 8076 (June 28, 1977).

governmental agency except as * * * provided

[by Section 205(g)]. No action against the

United States, the Secretary, or any officer or

employee thereof shall be brought under section

41 of Title 28 to recover on any claim arising

under [Title II of the Social Security Act].

The final sentence of that provision barred the dis-

trict court from exercising jurisdiction over respond-

ent’s complaint, which asserts a claim arising under

Title IT.

The court of appeals, relying upon its earlier deci-

sion in Frost v. Weinberger, 515 F. 2d 57 (C. A. 2),

certiorari denied, 424 U.S. 958, held that Section

205(h) does not preclude the exercise of mandamus

jurisdiction under 28 U.S.C. 1361, But that holding is

inconsistent with this Court’s determination that Sec-

tion 205(g) is the exclusive source of jurisdiction in

social security cases," and that “[o]ther sources of

jurisdiction [are] foreclosed by § [2]05(h).’’ Wein-

berger v. Salfi, 422 U.S. 749, 764." See also Califano

11 Since respondent does not seek review of any “final decision

of the Secretary,” but rather challenges the delays in the adminis-

trative process prior to the Secretary’s decision on his claim, Sec-

tion 2U5(g) provides no basis for jurisdiction. This Court's deci-

sion in Mathews v. Eldridge, 424 U.S. 319, is not to the contrary.

In that case, the Court concluded that the Secretary’s decision in

terminating benefits without a prior hearing was sufficiently final

to permit review of a claim that a prior hearing should have been

provided. Here, however, the crux of respondent's claim is that

delays in the administrative process hindered his ability to secure

a decision by the Secretary.

‘2 The plaintiffs in Salfi had predicated jurisdiction on, inter

alia, 28 U.S.C, 1361. See Weinberger v. Salfi, No, 74-214, Appen-

dix, p. 7.

v. Sanders, 430 U.S. 99, 109-111 (coneurring opinion

of Mr. Justice Stewart).”

Although the effect of the jurisdictional bar of See-

tion 205(h) is to deprive the courts of power to over-

see the general efficiency with which the Secretary ful-

fills his duty to administer the claims procedure under

the Social Security Act, that is not an inappropriate

result. To the contrary, the absence of jurisdiction

confirms that Congress understands that it is the re-

sponsibility of the political branches, not of the courts,

to resolve problems of administration of the kind

presented here. Broad policy decisions with respect to

the allocation of resources for the nationwide adminis-

tration of a complex statutory program may appro-

priately be left to judicially nonreviewable adminis-

trative resolution—a resolution that remains subject

to review by Congress, which is, in the last analysis,

the only branch of government capable of remedying

genuine deficiencies in publie resources. See Federal

Communications Commission vy. Pottsville Broadcast-

ing Co., 309 U.S. 134.

*® The scope of the jurisdictional bar of Section 205(h), and its

application to 28 U.S.C, 1361, are further explored in our briefs in

Norton v. Mathews, 427 U.S. 524 (at pp,g@3-18), and Califano v.

Sanders, supra (at pp. 10-16). We are furnishing copies of these

briefs to counsel for respondent.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wape H. McCrer, Jr.,

Solicitor General.

BaRBARA ALLEN BABCOCK,

Assistant Attorney General.

Sara Sun BEALg,

Assistant to the Solicitor General.

WILLIAM KANTER,

JOHN M. Rocers,

Attorneys.

DECEMBER 1977.

APPENDIX A

United States Court of Appeals for the Second

Circuit

No. 1127—September Term, 1976

Argued May 23, 1977—Decided July 18, 1977

Docket No. 77-6015

GEORGE WHITE, ON BEHALF OF HIMSELF AND ALL

OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE

against

Davip MATHEWS, SECRETARY OF THE DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE, AS AN INDIVID-

UAL AND IN His OrrictaL CAPACITY, DEFENDANT-

APPELLANT

Before FEINBERG AND DANAHER,’ Circuit Judges,

and Dootine, District Judge.’

FEINBERG, Circuit Judge:

The Secretary of the Department of Health, Educa-

tion and Welfare appeals from a successful challenge

by plaintiff George White to the glacial pace at which

the Social Security Administration (SSA) has adju-

dicated claims to disability payments. The United

States District Court for the District of Connecticut,

* Of the District of Columbia Circuit, sitting by designation.

* Of the Eastern Districc of New York, sitting by designation.

(1a)

T. Emmet Claire, Chief Judge, found the adminis*ra-

tive delays in Connecticut unreasonable, and ordered

reductions in those delays according to a schedule

whose first stage would become effective July 1, 1977.

Under the judgement of the district court, claimants

forced to wait for a decision longer than the pre-

scribed maximum periods are to be paid benefits until

they are ruled ineligible. On appeal, the Secretary

argues that the district court lacked subject matter

jurisdiction, that the case is moot, and that in any

event the delays should not be held unreasonable in

view of extraordinary circumstanées that aggravated

the administrative burden and in view of Congres-

sional reaction to the problem. We find none of these

arguments persuasive and we affirm the order of the

district court.

A brief description of the statutory scheme will be

helpful in understanding the issues before us. The ad-

ministrative process dealing with claims for dis-

ability insurance under Title II of the Social Security

Act, 42 U.S.C. § 401 et seq., is quite complex, involv-

ing both state and federal agencies. As the Supreme

Court explained in Mathews v. Eldridge, 424 U.S. 319,

335 (1976), state agencies first determine “whether a

disability exists, when it began, and when it ceased.

* * * The standards applied and the procedures fol-

lowed are prescribed by the Secretary * * * who has

delegated his responsibilities and powers under the

Act to the SSA.” To establish disability and main-

tain his right to continued benefits, a wage earner

must adduce “such medical and other evidence of the

existence [of the disability] as the Secretary may re-

quire,” 42 U.S.C. § 423(d)(5), to prove that he can-

not “engage in any substantial gainful activity.’’ 42

U.S.C. §423(d)(1)(A). This showing is necessary

both upon initial application and at continuing-eligi-

bility investigations. The latter periodic inquiries in-

volve a physician and another person trained in dis-

ability evaluation, who rely on information obtained

from the wage earner himself and from his sources of

medical treatment. The state agency may also ar-

range for an examination by an_ independent

physician.

If the agency concludes, either initially or upon re-

examination, that the claimant is not entitled to bene-

fits, he is notified of this tentative conclusion and is

given an opportunity to submit additional evidence.

The state agency then makes its final determination,

which the SSA Board of Disability Insurance reviews.

An unsuccessful claimant can seek reconsideration by

the state agency, whose decision is again subject to

SSA review. A losing claimant-is then entitled to a

hearing before an administrative law judge, which en-

tails a personal appearance and a full evidentiary

proceeding. 42 U.S.C. § 405(b) (1970). Review of the

administrative law judge’s decision is available at the

discretion of the Appeals Council of the SSA Hear-

ings and Appeals Bureau. Thereafter, a claimant can

obtain judicial review of an adverse determination

under § 205(g) of the Act, 42 U.S.C. § 405(g).

This case only concerns delay at the administrative

law judge hearing stage, and the facts regarding the

claim of wage earner George White are undisputed.

White filed an application for disability insurance

benefits in the summer of 1972. He claimed to be

totally disabled because of cirrhosis of the liver and

acute pancreatitis, and he was awarded benefits be-

ginning in January 1973. The agency reexamined

White’s case later that year, and after receiving a

doctor’s report, determined that White’s disability

had ceased in November 1973, and that he was last

entitled to benefits for January 1974.

White requested reconsideration, but in early July

1974 he was told that the agency would not change

its decision. On July 29, he requested a hearing

before an administrative law judge. The hearing did

not take place until April 29, 1975, and the adminis-

trative law judge issued his decision (adverse to

White) on May 21, 1975—about ten months after

White’s request for a hearing. Subsequently, the Ap-

peals Council of the SSA reviewed the case, took

some new evidence, and in December 1975 found that

White’s disability had not ended in November 1973,

but had continued. In December 1975, the SSA re-

instated White’s benefits and paid him back benefits

totalling more than $3,000. At that point, White had

not received benefits for almost two years.

In the meantime, however, White had taken further

steps to obtain his benefits. In January 1975, while

waiting for the hearing he had requested over five

months earlier, White filed a class action in the

district court, seeking declaratory and injunctive re-

lief against the long hearing delays in Connecticut.*

In March 1975, White moved for certification of the

class, which Judge Clarie granted on July 18, 1975.*

* The situation in Connecticut was not atypical. See Wright v.

Mathews, Civil No. 75-1537 (N.D. Ill. June 6, 1977) ; Barnett v.

Mathews, Civil No. 74-270 (D. Vt. Feb. 22, 1977).

* The class was certified as “all potential Social Security Dis-

ability recipients, who have pending petitions for a hearing be-

fore the Administrative Law Judge and have not had a hearing

scheduled promptly and the matter concluded within a reasonable

time.”

In the district court action, both White and the

Secretary moved for summary judgment. The Secre-

tary also moved to dismiss the complaint, arguing

lack of jurisdiction and mootness. In a thorough

opinion, Judge Clarie denied defendant’s motions and

granted summary judgment for plaintiff and his

class.

The judge found that the average time between

request for a hearing before an administrative law

judge and entry of his final decision for the period

of January 1973 through March 1975 was 211.8 days

for residents of Connecticut, and 195.2 days nation-

ally. Concluding that these delays were unreasonable

and violated the Social Security Act, the Administra-

tive Procedure Act, 5 U.S.C. § 551 et seq., and the

due process clause, the judge ordered that maximum

delays between request for a hearing and final deci-

sion by an administrative law judge be reduced to

180 days after July 1, 1977; to 150 days after Decem-

ber 31, 1977; and to 120 days after July 1, 1978.

Claimants who are made to wait longer are to receive

benefits automatically from the expiration of the al-

lotted time period until a decision is rendered. The

Secretary appeals, arguing that the court had no

jurisdiction, that the action is moot, that class cer-

tification was improper and that the judge was wrong

on the merits.

JURISDICTION

Judge Clarie found subject matter jurisdiction

under 28 U.S.C. § 1361, which gives district courts

“original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the

United States or any agency thereof to perform a

duty owed to the plaintiff.’ In Frost v. Weinberger,

515 F. 2d 57 (2d Cir. 1975), cert. denied, 424 U.S.

958 (1976), we held that 28 U.S.C. § 1361 was a suf-

ficient predicate for district court jurisdiction over an

action to require the SSA to provide an evidentiary

hearing before terminating survivors’ benefits under

the Act. The analogy to this case is clear, and recent

Supreme Court cases seem to leave open the pos-

sibility that relief can be available here under § 1361.

See Norton v. Mathews, 427 U.S. 524, 529-30 (1976) ;

Mathews vy. Eldridge, 424 U.S. 319, 322 n. 12 (1976).

Appellant does not attempt to distinguish F’rost, but

argues that the Social Security Act itself precludes

mandamus review. Section 205(g), reproduced in the

margin,’ alows a claimant to obtain judicial relief only

after a final agency decision. And § 205(h) provides:

“No findings of fact or decision of the Secretary shall

he reviewed by any person, tribunal, or governmental

agency except as herein provided.” Appellant claims

that this preclusion includes § 1361, because otherwise

the requirement of § 205(g) for exhaustion of admin-

istrative remedies would be circumvented. Appellant

cites RoAne v. Mathews, 538 F. 2d 852 (9th Cir. 1976),

* Section 205(g) provides, in pertinent 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. Such action

shall be brought in the district court of the United States for the

judicial district in which the plaintiff resides or has his principal

place of business. or. if he does not reside or have his principal

place of business within any such judicial district. in the United

States District Court for the District of Columbia.”

as authority. But in that ease, plaintiffs attempted to

invoke § 1361 to gain premature judicial review of the

question whether they qualified for social security

benefits. This action, on the other hand, does not affect

the merits of the underlying statutory issue—whether

claimants in White's class are entitled to benefits—

that will ultimately be subjected to the administrative

process. Here, the district court was asked merely to

require the agency to conduct its proceedings with

reasonable speed. As will be seen below, the agency

has a clear obligation under the statute to do so. The

Secretary argues that mandamus is inappropriate be-

cause the timing of a hearing rests in his discretion.

But the scope of the Seeretary’s discretion is the very

issue before us, since we do not believe that he has

discretion to deny a reasonable opportunity for a

hearing. See Byse and Fiocea, Section 1361 of the

Mandamus and Venue Act of 1962 and ‘Notstatu-

tory” Judicial Review of Federal Administrative Ac-

tion, 81 Hary. L. Rev. 3u8, 354 (1967). Under these

circumstances, we follow Frost and hold that the dis-

trict court properly predicated jurisdiction on § 1361.‘

This conclusion leaves § 205(g) undisturbed as the

exclusive avenue to the courts for a claimant seeking

to challenge the merits of an SSA denial of benefits

under the Act. See Califano v. Sanders, 45 U.S.L.W.

4209 (Feb. 23, 1977); Weinberger vy. Salfi, 422 U.S.

749 (1975).

* This conclusion makes it unnecessary for us to consider the

alternative grounds of jurisdiction advanced by White. namely, 28

T.s.C, $1351 and 42 U.S.C. § 405(g). In light of Califano v.

Sanders, 45 U.S.L.W. 4209 (Feb. 23, 1977), White abandoned

in this court his jurisdictional argument based on the Acdministra-

tive Procedure Act.

MOOTNESS

Appellant argues to us, as he did below, that this

case became moot when White received his hearing

and decision from the administrative law judge. The

complaint sought only declaratory relief and a manda-

tory injunction to compel the scheduling of a hearing.

White’s hearing before an administrative law judge

in April 1975 thus ended his individual controversy

with the SSA over the issue in this case. In appel-

lant’s view, that barred continuation of this action,

despite the fact that White filed it as a class action.

Judge Clarie did not certify the class until July 18,

1975, almost three months after the hearing before the

administrative law judge. The argument is that

White’s case became moot before the class was certi-

fied, and “if none of the named plaintiffs purporting

to represent a class establishes the requisite of a case

or controversy with the defendants, none may seek

relief on behalf of himself or any other member of the

class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974).

There is, however, no question that White had

alleged a substantial controversy when he filed suit

in January 1975, and nothing had changed his posi-

tion when he moved for class certification in March

of that year. The existence of a controversy at that

point was sufficient, on the facts of this case, to enable

this suit to proceed as a class action. In Sosna v.

Towa, 419 U.S. 393, 402 n. 11 (1975), the Supreme

Court acknowledged the possibility that special allow-

ance may at times be necessary for claims that

evaporate as the suit unfolds:

There may be cases in which the controversy

involving the named plaintiffs is such that it

becomes moot as to them before the district

court can reasonably be expected to rule on a

certification motion. In such instances, whether

the certification can be said to “relate back” to

the filing of the complaint may depend upon

the circumstances of the particular case and

especially the reality of the claim that other-

wise the issue would evade review.

The question is whether to allow class certification

in this case to relate back at least to March 1975,

when White moved to certify the class and still had

not received a hearing before an administrative law

judge. Refusing to do so would mean that the SSA

could avoid judicial scrutiny of its procedures by the

simple expedient of granting hearings to plaintiffs

who seek, but have not yet obtained, class certication,

Cf. Workman v. Mitchell, 502 F. 2d 1201, 1208 (9th

Cir. 1974): Lamont v. Postmaster General of the

United States, 229 F. Supp. 913 (S.D.N.Y. 1964)

(3-judge court) (dissenting opinion), rev’d, 381 U.S.

301 (1965). We do not suggest that this occurred here,

be we must take notice of the “reality” of that possi-

bility in the future. Moreover, the key issue here—

whether SSA’s hearings are unreasonably delayed—

is a live one still for mem ers of the class. The court

was fully apprised of the broad nature of the con-

troversy well before White received his hearing be-

fore the administrative law judge. If Judge Clarie

had been concerned about mootness he obviously could

have ruled on the class certification motion more

quickly. See Frost v. Wetnberger, supra, 515 F. 2d

at 64. But a district court should have enough time

to consider these important issues of class status care-

fully, particularly when no purpose would be served

by rushing a ruling. The main reason for requiring

that the named plaintiff have a “live’’ controversy

10a

is to assure adequate representation of the interests

of the class. Id. Counsel for the class here has argued

energetically and capably throughout, as the outcome

below bears out. There is no reason to keep these

efforts on behalf of the class in check until the SSA

delays so long that it not only provokes a suit but

also allows time for a carefully considered ruling on

the class issue. Under all the circumstances, we do

not think the case is moot.’

CLASS CERTIFICATION

Appellant’s last preliminary challenge is directed at

the certification of the class. First, he argues, White

was not a member of the class when it was certified,

but as we have just explained, certification can relate

back so this case escapes the pitfall of O’Shea v. Lit-

tleton, supra. Also, we are urged, the plaintiffs’ claims

lack the uniformity of legal and factual issues that is

necessary before a case can come within F.R. Civ. P.

23(a)(2). However, plaintiffs all seek social security

disability benefits through the identical administrative

process, all have requested hearings after initial ad-

* Judge Clarie’s opinion mentions two “named intervenors”:

Alice Lockwood. who waited over a year between her hearing re-

quest and the administrative law judge's final decision, which

came in October 1975; and Helen Caldwell, who waited six months

for a hearing and ruling on her appeal from denial of disability

status after she underwent surgery for lung cancer. From the

record, it is unclear whether their motions to intervene were ever

actually granted, or when that occurred. We note that if Lock-

wood's motion to intervene was granted before the hearing and

decision by the administrative law judge on White’s claim, the

action was clearly not mooted before certification of the class in

July 1975.

lla

verse rulings, and all have endured long delays before

hearing. Judge Clarie correctly concluded that these

common elements justified class certification.

III

We turn now to the merits of the controversy before

us. On the record before him, Judge Clarie ruled:

[T]he lengthy and persistent delays experi-

enced in the Title II disability appeals system

in Connecticut averaging 211.8 days between

January 1973 and March 1975 * * * are un-

reasonable. Such delay denies due process

rights to aggrieved applicants and conflicts with

the statutory purposes and provisions of the

Social Security and Administrative Procedure

Acts. These acts require that the Agency act

with reasonable dispatch.

There seems to be no quarrel with the judge’s find-

ing of the average length of delay. Appellant argues

instead that the delays did not violate the statutes

cited above or the Constitution, that the district court

should have deferred to administrative and congres-

sional efforts to remedy the problem of hearing delay

and that, in any event, the court should not have

granted prospective payments.

Section 205(b) of the Social Security Act, 42 U.S.C.

§ 405(b), instructs the Secretary to make “decisions

as to the rights of any individual applying for a pay-

ment” of benefits. Thereafter, upon request of a claim-

ant, the Secretary is directed *» provide him with

“reasonable notice and an opportunity for a hearing’”’

251-572—T7——_5

12a

with respect to the decision complained of.* We read

this as giving the claimant a right to a hearing with-

in a reasonable time and we do not understand the

Secretary to dispute this construciion. Although what

is reasonable depends upon a variety of circumstances,

that statutory command should not be ignored. The

disability insurance program is designed to alleviate

the immediate and often severe hardships that result

from a wage-earner’s disability. In that context,

delays of the better part of a year in merely afford-

ing an evidentiary hearing detract seriously from the

effectiveness of the program. Perhaps this unfortunate

impact might be diminished to a tolerable level if a

high percentage of claimants seeking hearings before

an administrative law judge were not actually entitled

to benefits. But such hearings have led to reversals in

more than half the cases heard.’

® Section 205(b) reads, in pertinent part: “The Secretary is di-

rected to make findings of fact, and decisions as to the rights of

any individual applying for a payment under this subchapter.

Upon request by any such individual or upon request by a wife.

divorced wife, widow, surviving divorced wife, surviving divorced

mother, husband, widower, child, or parent who makes a showing

in writing that his or her rights may be prejudiced by any decision

the Secretary has rendered, he shall give such applicant and such

other individual reasonable notice and opportunity for a hearing

with respect to such decision, and, if a hearing is held, shall, on

the basis of evidence adduced at the hearing, affirm, modify, or

reverse his findings of fact and such decision.”

® House Comm. on Ways and Means, Committee Staff Report

on the Disability Insurance Program (July 1974) at 1. In Math-

ews v. Eldridge, 424 U.S. 319, 346, n.29 (1976), the Court focused

on the statistical universe of all denials of benefits, not just the ones

that are appealed, because that case concerned the overall fairness

of the entire procedural system. In our case, the high rate of suc-

cess for claimants pursuing appeals is meaningful as an indication

that a large number of the victims of administrative delay actually

are disabled and entitled to benefits.

134

The Supreme Court noted in Mathews v. Eldridge,

424 U.S. 319, 342 (1976), that “[i]n view of the tor-

pidity of this administrative review process, * * * and

the typically modest resources of the family unit of

the physically disabled worker, the hardship imposed

upon the erroneously terminated disability recipient

may be significant.” True, the Court ruled that this

hardship did not constitttionally compel a hearing

prior to termination because, among other things, of

the potential sources of temporary income for the

claimant and the exigencies of budget and personnel.

But the absence of pre-termination hearings makes

it all the more important to expedite adjudication of

claims of erroneous termination.

As against this, the Secretary points to the serious

problems with which the SSA has had to cope. A flood

of claims for benefits followed passage of the Federal

Coal Mine Health and Safety Act of 1969, 30 U.S.C.

§ 901 et seq., and Title XVI of the Social Seeurity

Act, 42 U.S.C. § 1381 et seq., which provided supple-

mental security income (SSI) for the aged. Legisla-

tive obstacles prevented efficient deployment of three

distinct corps of hearing officers, who were separately

handling Title II cases, black lung cases, and SSI

eases, to dispose of the backlog involved here. And in-

creasing the hearing staff was difficult because other

civil service hearing examiner positions were paid

more.

Judge Clarie took note of these problems, and recog-

nized that the SSA had, commendably, tried to over-

come them. The SSA has increased support personnel

and equipment, hired staff attorneys, and screened

eases to identify candidates for favorable action

without any need for a hearing. Nevertheless, Judge

Clarie found that the SSA was not justified in fore-

14a

ing claimants to endure so many months of delay

while they went without benefits. For claimants like

White who eventually win reinstatement of benefits

after an administrative cut-off, the question truly is,

as Judge Clarie found:

not whether there shall be costs incurred, but

who shail bear them while the governmental

machinery responsible for providing appeals

puts itself in order. When the government does

not act with reasonable promptness, those

claiming total disability are required to bear

an unreasonable delay and suffer unwarranted

deprivation of that which is lawfully theirs.

Cf. NLRB vy. Rutter-Rer Mfg. Co., 396 U.S. 258, 263-

64 (1969). Like the district Judge, we are sympa-

thetic to the administrative problems that beset the

SS.A, but we do not believe that these difficulties estab-

lish that claimants in White’s class have been given a

‘*reasonable * * * opportunity for a hearing.”

The Secretary also relies on recent legislative his-

tory to support his contention that the SSA hearing

delays do not violate the Act. We are told that Con-

gress rejected the idea of imposing precise time limits

on the SSA, preferring not to sacrifice quality of

hearing in the name of speed; and that Congress has

recently found that in light of the special problems

plaguing the SSA, no unreasonable delay existed. Ap-

pellant refers to the special investigation conducted

by the House of Representatives Subcommittee on

1° Tn that case, a similar concern for the financial plight of stat-

utorily protected workers led the Supreme Court to disallow the

reduction of back pay awards because of slow NLRB disposition

of the case. The Court had to balance countervailing interests of

the innocent wage earner and the party harmed by the delay;

here, the claimants are both innocent and hurt by the delay.

15a

Social Security in the fall of 1975. Drthe wake of

that study’s full explication of the delay problem and

its causes, Congress authorized HEW to employ its

hearing examiners more effectively, but imposed no

specific time limits fur disability hearings.” Instead,

appellant insists, Congress left the scheduling of the

hearing entirely up to the agency’s discretion.

We do not believe that this legislative history

changes the meaning of § 205(b). Congress did not

abandon the requirement of reasonableness, and the

decision not to impose precise limits should not be

interpreted as an endorsement of the delays. SSA

Commissioner James B. Cardwell had represented

to Congress that by June 1977 hearing delays would

not exceed 90 days.” The district court’s imposition

of a time schedule that allowed the SSA from 90 to

30 days longer than its own projection is hardly at

odds with the expectations of Congress.

Appellant also argues that, in any event, the district

court acted improperly in ordering the prospective

* Pub. L. No, 94-202, 89 Stat. 1135 (1976).

** Following his appearance before the subcommittee, Cardwell

was asked to respond in writing to a number of specific questions

from the subcommittee. Regarding the hearing delays, the ques-

tion and answer were as follows:

“You stated on page 10 of your prepared statement that you

are going to have a goal of a 90-day waiting period for a hearing

but then you emphasized the difficulty of the procedures where

medical examinations may be necessary and medical and voca-

tional experts used.

“In view of the present backlog and the nature of the hearing

process, what is your best estimate of when this goal will be met ¢

How many additional ALJ's will be required to meet this goal?

Is this goal realistic?

“By June 1976, we expect to be able to process the title XVI

eases being heard by SSI hearing examiners within 90 days of

receipt of the request for hearing. With respect to the cases which

16A

payments to claimants who endure delays longer than

the schedule allows. We are told that Congress au-

thorized prospective payments only in a narrow cate-

gory of cases which does not include this situation.

See 42 U.S.C. § 405(q). But the absence of a specific

congressional provision does not bar the federal

court’s exercise of its remedial power when it finds

that the Secretary has violated the statute. In provid-

ing for disability benefits, Congress intended to give a

disabled worker a ready source of support, financed

in part by a tax in the past on his own earnings. The

statute was intended to make it unnecessary for an

eligible worker to resort to the sometimes demean-

ing procedure of asking for local relief,”* as plaintiff

(Continued)

are now being handled by ALJs (e.g., title II, concurrent title NVI

and title II, title XVIII, ete.), we hope to be able to reach our

goal by June 1977, of issuing the hearing decision within 90 days

of the request for hearing. In order to reach this goal we must

eliminate the current backlog and to do this we will need to have

flexibility in using the current hearing manpower available. Auth-

orization will be needed for all hearing officers to hear cases under

titles IT, XVI, and XVIII. Once the backlog is eliminated, we will

be able to handle anticipated receipts with the budgeted 675 pre-

siding officers.

“The 90-day processing goal is, in our opinion, realistic.”

Delays in Social Security Appeals: Hearings before the Sub-

comm. on Social Security of the House Comm. on Ways and

Means, 94th Cong.. Ist Sess. 74 (1975).

18 The Senate Finance Committee minority report, supporting

H.R. 7225 (which Congress ultimately passed to create the dis-

ability insurance program). said: “Under a sound social-insurance

program, Americans should be protected against the fundamental

hazards which would otherwise destroy their earning power and

reduce them to beggary. Granted that some form of income is nec-

essary to provide for those who are unable to provide for them-

selves, it is far preferable that these persons should remain proud,

self-sufficient Americans rather than become hat-in-hand pleaders

for public charity.” 1956 U.S. Cong. Code & Admin. News 3942.

17A

White was compelled to do here. Judge Clarie’s order

is a landible effort to carry out this Congressional

purpose in the difficult circumstances of this case.

According to his prescribed schedule, the initial 180-

day period did not begin to run until July 1977, which

left the SSA more than a year after entry of the order

in which to reduce the delays. The order was not given

retroactive effect, and it allowed exceptions for cases

in which the claimant causes the delay, or where the

administrative law judge determines that additional

medical evidence must be gathered. Moreover, pay-

ments under the order are to cease if the administra-

tive law judge rules against the claimant, in which

case the SSA is entitled to full recoupment for interim

amounts paid in the meantime. We find no error in

this equitable solution to the difficult problem of bal-

ancing administrative difficulties and wage earners’

needs. Cf. Nader v. FCC, 520, F. 2d 182, 205-07 (D.C.

Cir. 1975); Deering Milliken, Inc. v. Johnston, 295

F. 2d 856 (4th Cir. 1961); Phillips v. Dawson, 393 F.

Supp. 360 (W.D. Ky. 1975). At the same time, we em-

phasize that Congress can always assert its power to

give the district courts more specific direction. But

nothing so far seems to rule out the time limits im-

posed here.

Appellant also argues that prospective payments

cannot issue because 42 U.S.C. § 405(1) allows actual

payments only upon a “final decision of the Secretary

or upon final judgment of any court * * * that any

person is entitled to” the payments. This section is

plainly directed at the ordinary situation in which

payments become due after favorable administrative

adjudication, or judicial review under § 405(g¢). We

do not read §405(i1) as excluding the possibility of

interim payments ordered by a court exercising its

remedial power.

18a

The judgment of the district court is affirmed.”

* In view of our holding, we need not decide whether the delays

also violated the Administrative Procedure Act or the due process

clause.

—

APPENDIX B

Unttep States Court oF APPEALS

FOR THE

SeconD CircvItT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the eigh-

teenth day of July, one thousand nine hundred and

seventy-seven.

Present: Hon. WILFRED FEINBERG, Circuit Judge;

Hon. JoHN A. DaNnaHER, Hon. JoHN F. Doone, Dis-

trict Judges.

GEORGE WHITE, ON BEHALF OF HIMSELF AND ALL OTHERS

SIMILARLY SITUATED, PLAINTIFF-APPELLEE

Davip MATHEWS, SECRETARY OF THE DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE, AS AN INDIVID-

UAL AND IN HIS OFFICIAL CAPACITY, DEFENDANT-AP-

PELLANT

77-6015

Appeal from the United States District Court for the

District of Connecticut

This cause came on to be heard on the transcript of

record from the United States District Court for the

District of Connecticut, and was argued by counsel.

(19A)

20a

On consideration whereof, it is now hereby ordered,

adjudged, and decreed that the judgment of said Dis-

trict Court be and it hereby is affirmed in accordance

with the opinion of this court with costs to be taxed

against the appellant.

DANIEL Fvsaro,

Clerk.

By ARTHUR HELLER.

Deputy Clerk.

APPENDIX C

United States District Court, District of Connecticut

Filed Sept. 9, 12:45 p.m. 1976

[Clerk, U.S. District Court, Hartford, Conn. ]

George WHiITe, oN Benatr or HIMSELF AND ALL

OTHERS SIMILARLY SITUATED

Us.

Davin MAaTHEWs, SECRETARY OF THE DEPARTMENT OF

HEALTH, EpvcaTiIon, AND WELFARE, AS AN INDIVID-

UAL AND IN His Orriciat Capaciry

Civil No. H-75-34

Ruling on Cross Motions For Summary Judgment

and on Motion to Dismiss

The plaintiff, George White, brought this action on

behalf of himself and other Connecticut residents who

are attempting to assert claims for Social Security

disability benefits under 42 U.S.C. § 423, but whose

appeals from adverse agency action have been impeded

by extensive delays in the scheduling and completion

of hearings before an administrative law judge, as

provided for in 42 U.S.C. §405(b) and 20 C.F.R.

§ 404.917. Plaintiff's class was certified by this Court

on July 18, 1975. Defendant, the Secretary of the De-

* The plaintiff class includes both individuals whose initial pe-

titions for disability have been denied by the Social Security Ad-

ministration (SSA) and individuals who were at one time declared

disabled, but whose benefits have subsequently been terminated by

the SSA on the basis of a periodic re-examination.

(21a)

22a

partment of Health, Education, and Welfare (HEW),

has moved for dismissal based on lack of subject mat-

ter jurisdiction and upon mootness. Plaintiff and de-

fendant have in addition entered cross-motions for

summary judgment on the merits.

The affidavits and pleadings reveal that this case

is a proper one for treatment by summary judgment,

there being no genuine issue as to any material fact

separating the parties. Defendant’s motion to dismiss

is denied, since the Court finds that the case is not

moot and the exercise of jurisdiction is not precluded

by 42 U.S.C. §8 405(g) and (h). The plaintiff’s motion

for summary judgment is granted and the Court finds

that the existing delay in processing appeals from

adverse agency action is so great as to deprive the

plaintiff of his statutory right and his constitutional

guarantee of equal protection and due process.

FACTS

There is no dispute as to the central facts in this

ease, the parties having entered into a stipulation.

The named plaintiff,’ a man in his fifties, applied to

the Social Security Administration (SSA) for dis-

ability benefits in July of 1972, complaining of a

* In addition to plaintiff White. there are two named intervenor

in this ease. Intervenor Alice Lockwood was denied disability

status when she first applied. Lockwood's petition for a hearing

before an administrative law judge was filed on October 15, 1974.

but she did not receive a final decision until October 27, 1975—376

days later. Intervenor Helen Caldwell was also denied disability

status on her initial application after undergoing lung cancer

surgery ; in her case, there was a delay of approximately six months

between petition and decision, although she continued to suffer

Meniere's disease, pulmonary emphysema and a depressive reaction.

Her condition led a medical « onsultant to remark in a 1974 repori

that “[{i]t is diffieult to see how she was denied—on a strict

medical !”

23a

variety of physical disabilities, including laennec’s

cirrhosis and chronic and acute pancreatitis. At that

time he was declared totally disabled and began to

receive benefits. As a result of a periodic re-examina-

tion begun in September of 1973, however, plaintiff

was informed—on December 27, 1973—that he was

uo longer considered disabled. His benefits were term-

inated as of January 31, 1974.

He then applied to have his case reconsidered by

the SSA, and was informed on July 11, 1974 that

his application had been denied. White then peti-

tioned on July 29, 1974 for a hearing before an ad-

ministrative law judge. No hearing was held on the

matter, however, until April 29, 1975, and the final de-

cision was not rendered thereon until May 21, 1975

when the SSA’s earlier decision to terminate White's

benefits was upheld.’ In all, 306 days passed between

the date of plaintiff’s petition for a hearing and the

issuance of the final decision.

The plaintiff's experience with the SSA appeals

process is not unique. As a result of various factors

discussed in more detail below, an extremely large

backlog of cases has developed in the SSA’s Hear-

ings and Appeals Bureau. In April of 1975, there was

a record total backlog of 113,000 pending cases na-

tionwide.* The result has been a chronic delay in the

disposition of appeals. During the period between

January 1973 and March 1975 the average waiting

period between an initial request for a hearing and

*Since then, the administrative law judge's ruling has itself

been reversed by the Appeals Council of the SSA Hearings and

Appeals Bureau. White's benefits have thus been reinstated.

* Defendant's Memorandum of Jan. 30, 1976, at 13. This figure

represents an “all time high” for the Bureau, and has since been

reduced. By June, 1976 the backlog had been lowered to 87.860.

Aff. of Jan J. Sagett. July 15, 1976, at 2.

244

the entry of a final decision was 195.2 days nation-

ally, and 211.8 days for petitions in Connecticut ‘—

or, approximately six and one-half and seven months

respectively. It is of these general lengthy and per-

sistent delays that the plaintiff complains.

(a) The Social Security Disability System

To establish disability ° under Title II of the Social

Security Act, a wage earner must provide **such medi-

cal and other evidence of the existence [of the dis-

ability] as the Secretary may require’’ in support of

the application. 42 U.S.C. § 423(d) (5). This evidence

must establish disability by means of “medically ac-

ceptable clinical and diagnostic techniques.” Id. § 423

(d)(3). And it must be shown that the disability in

question is sufficiently great that:

[the wage earner] 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, regardless of

whether such work exists in the immediate area

in which he lives, or whether a specifie job

vacaney exists for him, or whether he would be

hired if he applied for work. Id. § 423(d) (A).

To qualify for disability benefits, then, the worker’s

disability must be total, such that no “substantial

gainful work” opportunity exists. The level of benefit

payments is based on a variety of factors, including

* Plaintiff's Memorandum of Dec. 3, 1975, at 5.

* The term “disability” is defined in 42 U.S.C. § 423(d) (1) (A)

as the “inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impair-

ment 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 * * *,.”

254

age and the prior average monthly earnings of the

worker while employed. Eligibility under Title II of

the Social Security Act is not based directly on fi-

nancial need.

If it is determined that an individual is not dis-

abled, either on an initial application or as the result

of a periodic re-examination, a “redetermination hear-

ing” may be sought with the SSA to review the case.’

This review is undertaken on the basis of forms and

affidavits submitted to the Agency by the applicant;

no face to face meeting takes place at this time.*

Should the result of the redetermination hearing be

adverse to the applicant, he may then petition for a

hearing before an administrative law judge.’ At this

stage a full evidentiary hearing is held with the ap-

plicant in attendance. If the result is again unfavor-

able, a final discretionary review may be sought

before the Appeals Council of the SSA Hearings and

* Although an applicant for disability benefits initially files with

the SSA, the actual determination of disability is made by an

authorized state agency. Likewise, periodic reexaminations are

undertaken by the state, and thus it is not until the redetermination

hearing stage that the SSA becomes integrally involved in the

merits of a given case.

®* It is true, as defendant contends, that the SSA redetermination

hearing is not undertaken in a vacuum, inasmuch as the Agency

has before it affidavits based on personal examination of the appli-

cant undertaken by his own doctor and sometimes by doctors as-

signed by the Agency. Nevertheless, as the reversal rates cited

below indicate, there is a basis to stress the importance of a face

to face hearing.

® See 20 C.F.R. $§ 404.917.

26a

Appeals Bureau.” It was this latter Council that

finally overturned the original determination made

with respect to plaintiff White in this case.

To judge from the number of reversals at the ad-

ministrative law judge stage of appellate review the

“error rate” in SSA disability determinations is sub-

stantial. The incidence of reversals by administrative

law judges exceeds 50 percent of all the cases heard.”

The reversal rate is much lower, tobe sure, when

measured against the total number of original denials,

many of which are not appealed.” However with

respect to those individuals; who feel sufficiently ag-

grieved with the Agency’s decision to seek an appeal

(the relevant class in this case), the prospects for a

reversal are substantial. It cannot be persuasively

maintained that a pattern of extended delay in the

completion of hearings before an administrative law

judge is but a matter of small consequence to such

aggrieved applicants.

1 As stressed by the Court in Mathews v. Eldridge, supra, no

decision issued by the SSA is ever totally “final” in the sense that

the applicant's file is retained in order that new evidence may be

submitted, should any become available. Moreover, within 60 days

after a “final decision” of the Secretary the applicant may obtain

a review of the decision in district court, 42 U.S.C. § 405(g).

11 Committee on Ways and Means, Staff Report on the Disability

Insurance Program 1 (July, 1974).

12 Defendant’s Memorandum of Jan. 30, 1976, at 27. If measured

against all initial denials of disability, the relevant error rate 1s

approximately 13.5%. If only appeals before the Hearings and

Appeals Bureau administrative law judges are considered, the

reversal rate becomes a much larger 51.6%.

27A

(b) Causes of the Backlog and Remedial Steps Taken

A number of factors have contributed to the exist-

ing backlog of appeals cases before administrative law

judges. In the first place, the government represents

that a large volume of “black lung” eases have been

filed under the Federal Coal Mine Health and Safety

Act of 1969, 30 U.S.C. §§ 901 et seg. While special

judges have been appointed to hear these cases, ap-

peals have appeared in such volume that the Hearings

and Appeals Bureau has been required to shift some

Title II (disability) judges to cover them.” Similarly,

the enactment of Title XVI of the Social Security

Act, Supplemental Security Income for the Aged,

Blind and Disabled (SST), has resulted in extra work

for Title IT judges.”

In addition to such external burdens a variety of

internal difficulties have plagued the Bureau. Officials

complain of inflexibility in the use of Title XVI

hearings officers,” of difficulties in recruiting a suffi-

cient number of administrative law judges, and of a

growing number of disability appeals.

Steps have been taken both by the SSA and by Con-

gress to reverse the flow of this tide. The Agency has,

for instance, substantially increased its support staff,

added to the number of administrative judges and

hearings officers, and instituted various improved tech-

niques to expedite case processing” Productivity has

risen substantially as a result of these and other in-

*? Defendant's Memorandum of Jan. 30, 1976, at 11-12 (citing

affidavit of Daniel Schultz, Director of Bureau of Hearing and

Appeals). The initial number of hearing requests under the Black

Lung program was 75,000, ;

* Td. at 12-15.

* Aff. of Daniel L. Schultz. Jan. 15, 1976, at 5.

*® Defendant's Memorandum of Jan. 30, 1976, at 15.

28a

novations,” although officials point to a deluge of

incoming cases which have overwhelmed the improve-

ments in recent months.”

Congressional hearings were held in 1975 to probe

the backlog problem, and a piece of remedial legisla-

tion, P.L. 94-202, was thereafter passed by Congress

and signed in law in January of 1976.° This bill

provides the Secretary of HEW with temporary au-

thority to permit the use of SSI hearing examiners

to review Title 1I appeals. It may be noted that dur-

ing the time P.L. 94-202 was before Congress addi-

tional legislation was introduced which would have set

an express time limitation on the scheduling and

completion of appeals hearings.” In H.R. 5276, intro-

duced by Rep. Seiberling, a 120-day maximum limit

would have been imposed.” No such time restriction

was included in the final legislation, however.

It was originally the aim of the SSA Hearings and

Appeals Bureau to reduce the median delay in ob-

taining a hearing before an administrative law judge

to 90 days by July, 1977.” Recently the Bureau has

abandoned this estimate because of shortfalls in ad-

ministrative law judge recruitment.” Nevertheless

17 When measured from the lowest productivity period (the

fourth quarter of FY 1974) through the end of the first quarter of

FY 1976, there has been a national level productivity in-

crease of 62%. Aff. of Daniel L. Schultz, Jan. 15, 1976, at 8. There

has likewise been a marked productivity increase in the Connect-

icut area. Jd.

* See Aff. of Jan J. Sagett, July 15, 1976.

1° Defendant’s Memorandum of Jan. 30, 1976, at 16.

20 Jd. at 16-17.

= Td,

22 Statement of Atty. Thomas Stout for defendant to the Court,

Feb. 17, 1976.

#3 Aff. of Jan. J. Sagett, July 15, 1976, at 2.

29a

it has been shown that productivity gains are possible

to achieve, and defendant anticipates the special as-

signment of two corps of temporary administrative

law judges in Region I (which includes Connecticut)

to combat the large backlog in this geographical

region. It is estimated that through the use of these

judges the Region I backlog can be reduced by 40

pereent.*

The primary issue to be decided on these facts is

whether or not the administrative hearing delays ex-

perienced in the SSA appeals system deprive the

plaintiff of statutory or constitutional rights or

privileges, thereby justifying action by this Court.

For reasons stated below, we conclude that they do.

JURISDICTION AND MOOTNESS

Before reaching the merits, the defendant’s motion

for dismissal based on mootness and lack of jurisdic-

tion must be addressed. The defendant has taken the

position from the outset that subject matter jurisdic-

tion was lacking in this Court by virtue of the re-

strictions set up within the Social Security Act, 42

U.S.C. §§ 405 (g) and (h).* The plaintiff has re-

sponded that the statutory limitation imposed in these

sections extends only to suits “brought to recover on

24 Jd. at 2-3.

*° 42 U.S.C. $405(h) reads, in its relevant part: “No action

against the United States, the Secretary, or any officer or employee

theveof shall be brought under section 41 of Title 28 to recover on

any claim arising under this subchapter.” In Weinberger y. Salf,

422 U.S. 749, 756-67 (1975) (Rehnquist, J.), the Court presented

quite a restrictive interpretation of § 405(h) in a case where plain-

tiff sought § 1331 jurisdiction to attack specified Social Security

ct provisions as unconstitutional. Sa7f# involved a substantive at-

tack upon the statute, however, and in this regard is distinguish-

able from the present case.

30A

[a] claim arising under [the Social Security ],” a

whereas the thrust of plaintiff’s present action, they

argue, is to expedite disability hearings and not to

procure an advance judicial pronouncement on the

merits of a particular case.

While the present motions were pending the Su-

preme Court decided Mathews v. Eldridge, No. 74-204,

— U.S. —, 44 U.S.L.W. 4224 (Feb. 24, 1976). In

that case, the plaintiff argued, pursuant to Goldberg

v. Kelly, 397 U.S. 254 (1970) and related cases, that

fifth amendment due process necessitates an eviden-

tiary hearing prior to the termination of disability

benefits by the Secretary. The government argued

that the Court’s interpretation of §405(h) in Wein-

berger v. Salfi, 422 U.S. 749 (1975), precluded federal

court action, since no “final decision” had been taken

by the Agency.” The Eldridge Court held, however,

that a “sufficiently ‘final decision’’’ had in facet oc-

curred, since Eldridge protested the termination of

his benefits and the SSA had rejected the protest.*

Thus, jurisdiction was found under the Social Secur-

ity Act itself, 42 U.S.C. § 405(g). a

Plaintiff in the present action does not allege juris-

diction under § 405(g). The holding in Eldridge there-

fore does not redound directly to his benefit. Neither

does it stand as an impassible barrier to the mainte-

nance of his action, as defendant strongly contends.

Indeed, the principal jurisdictional questions in this

case were expressly reserved by the Eldridge Court,

when it said:

Given our conclusion that jurisdiction in the

District Court was proper under § 405(g), we

26 49 T.S.C. $ 405(h) (last sentence).

27 See Mathews v. Eldridge, supra, Slip Op. at 5.

28 Jd. at 4-10.

314A

find it unnecessary to consider Eldridge’s con-

tention that notwithstanding § 405(h) there was

jurisdiction over his claim under the manda-

mus statute, 28 U.S.C. § 1361, or the Adminis-

trative Procedures Act. 5 U.S.C. § 701 et seq.

Slip Op. at 10 n. 2.

What is more, in applying statutory prohibitions on

judicial review of agency decisions, the Eldridge

Court stressed the need to weigh the specific prayers

and allegations in a plaintiff’s action against the

language and purpose of the prohibition, placing

special emphasis on the need to preserve constitu-

tional élaims.” The Court in Eldridge itself adopted

this relational approach, framing the jurisdictional

issue as “whether the denial of Eldridge’s claim to

continued benefits was a sufficiently ‘final decision’

with respect to his constitutional claim to satisfy the

statutory exhaustion requirements.” * It was signifi-

cant to the Court in analyzing the question that

“Eldridge’s constitutional challenge is entirely col-

lateral to his substantive claim of entitlement.” ™

Here again the question is not whether there has

been a “final decision,’ but whether statutory and

constitutional violations have occurred as the result

** In a footnote, the Court stated: “Decisions in different con-

texts have emphasized that the nature of the claim being asserted

and the consequences of deferment of judicial review are important

factors in determining whether a statutory requirement of finality

has ben satisfied. The role these factors may play is illustrated by

the intensely ‘practical’ approach which the Court has adopted

** * when applying the finality requirements of 28 U.S.C. § 1291

** * and 28 U.S.C. § 1257. * * * [T]he core principle that statuto-

rily created finality requirements should, if possible, be construed

so not to cause crucial collateral claims to be lost and potentially ir-

ve parable injuries to be suffered remains applicable.” Slip Op. at 9

n. 11 (emphasis added).

Jd. at 8 (emphasis added).

st Jd,

32A

of a delay in final action. Thus plaintiff seeks to avoid

§ 405(g) rather than to fall under it, arguing that his

is not a suit to “recover on any claim arising under”

the Social Security Act, but only to have the system

operate with reasonable speed. Eldridge offers at least

tacit support for this approach, amd certainly pre-

sents no prohibitive impediment to it. We hold, there-

fore, on an analysis of Eldridge and of the language

in 42 U.S.C. § 405(h), that the latter statute does not

bar the Court’s assuming jurisdiction of this case

exclusive of the limitations provided under § 405(g).*

It remains to be determined, whether or not suf-

ficient grounds exist for the Court to take up jurisdic-

tion under other statutes, in particular 28 U.S.C,

§ 1361 (mandamus and 5 U.S.C. §§ 701, 704 and 705

(Administrative Procedure Act). Since plaintiff s

ease is strongest for mandamus jurisdiction, and since

that would be a sufficient basis for purposes of this

litigation, we analyze it first.

Several courts have recently upheld mandamus

jurisdiction on facts similar to those of the present

ease. Blakenship v. Mathews, No. C 75-0185 L(A)

(W.D. Ky. May 6, 1976); Sturgill v. Mathews, No.

75-288 (E.D. Ky. Sept. 17, 1975); Barnett v. Wein-

berger, No. 74-270 (D.Vt. May 6, 1975) ; ef. Tatum Vv.

Weinberger, No. C 74-351 L(A) (W.D. Ky. Jan. 16,

1976) ; Nos. 75-1695 and 75-1696 (6th Cir. Sept. 2,

1976). The thrust of these decisions is similar. Man-

damus jurisdiction requires that three basic conditions

be met: ‘‘(1) a clear right in the plaintiff to the relief

2 Accord, Sturgill v. Mathews, Civ. No. 75-288 (E.D. Ky. Sept.

17,1975). Cf. So. Windsor Convalescent Home v. Mathews, No. 75-

6136 (2d Cir. July 27, 1976), Slip Op. at 5124; Lejeune v. Mathews,

526 F. 2d 950, 953 (Sth Cir. 1976); Sanders v. Weinberger, 522

F. 2d 1167, 1171 (7th Cir. 1975).

3aA

sought; (2) a plainly denied and preemptory duty on

the part of the defendant to do the act in question;

and (3) no other adequate remedy available.” Lovallo

v. Froehlke, 468 F. 2d 340, 343 (2d Cir. 1972), cert.

denied, 411 U.S. 918 (1973). Here, as in the cases

cited,* these conditions are met.

In the first place plaintiff has a clear right to the

hearing he seeks, 42 U.S.C. §405(b); 20 C.F.R.

§ 404.91. Secondly, there is a duty upon the Secretary

to perform within a reasonable time and not permit

unreasonable delay of administrative action. 5 U.S.C.

§ 555 (b).* This sort of duty has been held to be man-

datory. Deering Milliken vy. Johnston, 295 F. 2d 856,

860-61 (4th Cir. 1961); see also, Barnett v. Wein-

berger, supra. And thirdly, it is the crux of plaintiff’s

suit that he cannot receive a prompt hearing, a fact,

** The above cited cases are not directly in point, since different

Social Security programs or practices were challenging therein.

Nevertheless, Blakenship, Sturgill and Barnett involved substan-

tially the same issue as we find here, and the jurisdictional analyses

presented in those cases are clearly germane.

**“A person compelled to appear in person before an agency or

representative thereof is entitled to be accompanied, represented,

and advised by counsel or, if permitted by the agency, by other

qualified representative, A party is entitled to appear in person

or by or with counsel or other duly qualified representative in any

agency proceeding. So far as the orderly conduct of public busi-

ness permits, an interested person may appear before an agency

or its responsible employees for the presentation, adjustment, or

determination of an issue, request, or controversy in a proceeding,

whether interlocutory, summary, or otherwise, or in connection

with an agency function. With due regard for the convenience and

necessity of the parties or their representatives and within a rea-

sonable time, each agency shall proceed to conclude a matter pre-

sented to it. This subsection does not grant or deny a person who is

not a lawyer the right to appear for or represent others before an

agency or in an agency proceeding.” 5 U.S.C. § 555(b) (emphasis

added).

344

which on its face, the Secretary does not (and indeed

could not successfully) dispute. Thus by definition,

there is virtually no other adequate remedy available.”

Nor can it be argued that since the Seeretary’s duties

are to some measure discretionary, mandamus is pre-

cluded. When the actions or inactions of an official

greatly exceed the discretion vested in the office, man-

damus may be appropriate. Niron v. Secretary of the

Navy, 422 F. 2d 934, 939 (2d Cir. 1970); United States

ex rel. Schonbrun v. Commanding Officer, 403 F. 2d

371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929

(1969).

The Court concludes that jurisdiction is proper un-

der 28 U.S.C. § 1361. Having reached this conclusion,

it is unnecessary to consider alternative bases of

jurisdiction.”

Defendant also has urged the Court to set aside this

case as moot, since White, the named plaintiff, has

now received a hearing and a favorable decision from

the SSA Appeal Council. The Court does not believe

that White's ultimate satisfaction in this matter re-

quires that it dismiss the action. The Supreme Court

in Sonsa vy. Iowa, US. , 422 U.S.L.W. 4125

(Jan. 14, 1975), a ease on which defendant relies

heavily looked to the date of class certificatio nas a key

point in time with respect to mootness determination.

* Conceivably the Secretary could act on the basis of a complaint

addressed to him by an individual aggrieved applicant. But the

Secretary is already fully aware of the existing appeals backlog.

and it must be concluded that no adequate remedy is available.

°° The Court expresses no opinion as to whether independent

jurisdiction might be available under the Administrative Proce-

dures Act. While it was not relied upon by the plaintiff, on the

other hand. it world not seem frivolous to this Court for plaintiff

to seek jurisdiction under ¢ 405(g), in light of language in the

Eldridge opinion. See note 29 supra.

354

Id. at 4127. This might admittedly create some prob-

lem for plaintiff, since although White's reversal came

in December of 1975—well after the certification of

the class in July, 1975—White’s hearing before an ad-

ministrative law judge was held on May 21, 1975,

which was w ) before the certification date. Never-

theless, the Court in Sonsa expressly recognized that

in an appropriate case (e.g., where the case becomes

moot with respect to named plaintiffs ‘before the

District Court can reasonably be expected to rule on a

certification motion”) certification may “relate back”

to the date of the filing of the complaint. Jd. at 4128

n. 11. Here, plaintiff’s motion for class certification

was filed on March 17, 1975, and a hearing on the mo-

tion was held before this Court on May 19, both of

which dates precede the earliest point at which the

ease might have arguably become moot. Under the

Sonsa holding, then, in light of the fact that ‘‘a live

controversy’’ persists to this date and has so per-

sisted throughout the proceedings,” the Court sees no

valid reason upon which to declare this case moot.

SUBSTANTIVE CLAIMS

In a supplemental brief, the defendant urged

strongly that the plaintiff's constitutional claims were

rendered untenable by the decision in Eldridge v.

Mathews, supra. In light of defendant’s heavy re-

** “There must not only be a named plaintiff who has such a case

or controversy at the time the the complaint is filed, and at the time

the class action is certified by the District Court pursuant to Rule

23,'* but there must be a live controversy at the time this Court

reviews the case * * *.° 43 U.S.L.W. at 4128.

** Defendant's Memorandum of April 9, 1976.

36a

liance on that case, the Court feels obliged to address

the matter briefly.

As stated abeve, Eldridge involved the claim by a

terminated disability recipient that the absence of an

evidentiary hearing before termination deprived him

of due process, as the termination of welfare benefits

without a prior hearing was found to violate due

process in Goldberg v. Kelly, 397 U.S. 254 (1970).

Recognizing the validity of Goldberg, but refusing to

extend its holding to the facts in Eldridge, the Court

restated the calculus which must be applied, on a case

by case basis, when assessing the procedural due proc-

ess clause:

* * * identification of the specific dictates of

due process generally requires consideration of

three distinct factors: first, the private interest

that will be affected by the official action; sec-

ond, the risk of an erroneous deprivation of

such interest through the procedures used, and

the probable value, if any, of additional or sub-

stitute procedural safeguards; and finally, the

government’s interest, including the function

involved and the fiscal and administrative bur-

dens that the additional or substitute procedure

would entail. Ship Op. at J2-13.

In denying Eldridge the same pre-termination hear-

ing afforded in Goldberg, the Court distinguished be-

tween the necessity for a face to face hearing in either

situation,” and also between the degree of deprivation

likely to be suffered by welfare recipients upon termi-

nation of their benefits as compared with Social Se-

* The Court stressed that whereas truthfulness is a frequently

materia] issue in welfare hearings, determinations of disability

normally proceed through inspection of medical data which is

comparatively objective, Mathews v. Eldridge, supra, Slip Op. at

21-25.

374

curity disability recipients.“ It was concluded that,

with respect to plaintiff’s particular claim, a differ-

ence of constitutional significance existed between

welfare recipients and Social Security disability

beneficiaries.

The Court in Eldridge did not rule, however, that

termination of a disability recipient’s benefits is alto-

gether without constitutional significance; indeed, the

very opposite was held.“ The Court merely de-

termined that the disability recipient’s deprivation

was not sufficient to compel an elaborate and expen-

sive addition onto the existing system for determining

disability.“ So far as this Court can determine, noth-

ing in Eldridge precludes a finding in plaintiff’s

favor on the constitutional claims put forth in this

case.

Proceeding to the merits, the Court finds this case

differs substantially from the case in Eldridge. The

nature of the personal interest alleged violated is dif-

*° Jd. at 17-21. The Court drew only a limited distinction be-

tween welfare and Social Security disability recipients with re-

spect to need, sufficient to decide the case in Eldridge : “In view of

the torpidity of this administrative review process * * * and the

typically modest resources of the family unit of the physically

disabled worker, the hardship imposed upon the erroneously

terminated disability recipient may be significant. Still, the dis-

abled worker's need is likely to be less than that of a welfare

recipient.” Slip Op. at 20 (footnotes omitted).

“ Jd. at 10.

* Plaintiff in Eldridge sought to affix a full evidentiary hearing

at the outset of the disability termination process. Under the cir-

cumstances the Court felt that this particular relief was unwar-

ranted: “The judicial model of an evidentiary hearing is neither

required, nor even the most effective, method of decision making

in all circumstances.” Slip Op. at 26. Thus, the Court upheld the

constitutionality of the disability appeals structure in its broad

outline.

38a

ferent to begin with. While Eldridge complained of

the SSA’s decision to terminate his benefits without

a hearing, here the plaintiff seeks to have the appeals

process proceed in a more prompt fashion.“ Further-

more, there is a difference in the relevant likelihood

of error. Eldridge never filed for a hearing before an

administrative law judge, and thus the relevant error

rate to consider in his case, as pointed out by the

Court, was the incidence of reversals with respect to

all disability denials. The class in this case, by com-

parison, consists only of individuals who have taken

an appeal, With respect to this class the relevant

error rate is far higher than was the case in

Eldridge,” and indeed exceeds 50 percent. Third,

there can be far less objection to the remedy sought

here from a public interest standpoint than was true

in Eldridge. It has been demonstrated that improve-

ments are possible through which the backlog of SSA

appeals cases may be reduced. There is undeniably

a cost associated with such improvements, and the

Court is mindful that setbacks may occur despite

ardent efforts to avoid them. Nevertheless, the ques-

*In Fusari v. Steinberg, 419 U.S. 379, 389 (1975), the Court

stated that: “the possible length of wrongful deprivation of * * *

benefits [also] is an important factor in assessing the impact of of-

ficial action on private interests.”

“* Mathews v. Eldridge, supra, Slip Op. at 24-25 and n. 29.

+> The Court said in Eldridge that : “[b]Jare statistics rarely pro-

vide a satisfactory measure of the fairness of a decision making

process.” Slip Op. at 24. In the context of Eldridge, which involved

a qualitative comparison between hearings and administrative de-

termination, this comment had obvious relevance. Here, reversal

statistics are probative of a narrower question—i.c., whether the

delay experienced by plaintiff is associated with a material depri-

vation, in light of the reversal rate—-and thus the use of statistics

in this instance is not subject to the same objections as in E/dridge.

ee ae

394

tion is not whether there shall be costs incurred, but

who shall bear them while the governmental machin-

ery responsible for providing appeals puts itself in

order.

When the government does not act with reasonable

promptness, those claiming total disability are re-

quired to bear an unreasonable delay and suffer un-

warranted deprivation of that which is lawfully

theirs. The Court finds that the lengthy and persistent

delays experienced in the Title II disability appeals

system in Connecticut averaging 211.8 days between

January 1973 and March 1975 (moreover, the inter-

venor Alice Lockwood was required to wait 376 days

for a decision) are unreasonable.“ Such delay denies

due process rights to aggrieved applicants and con-

flicts with the statutory purposes and provisions of

the Social Security and Administrative Procedure

Acts. These acts require that the Agency act with

reasonable dispatch.

Accordingly within the District of Connecticut the

defendant shall, on or before July 1, 1977, have

reduced the maximum delay between the filing of a

petition for a hearing before an administrative law

judge and the issuance of a final decision to one hun-

dred and eighty (180) days; and furthermore, by the

** While the period between the filing of a petition for a hearing

before an administrative law judge and the issuance of a final

decision has been the focus of this analysis, it should not be over-

looked that the period of time which ensues between the termina-

tion of benefits and their reinstatement in the event of a favorable

appeals result is even longer. In the case of plaintiff White, there

was a six month interim betwen the termination of his benefits

and the filing of a petition for appeal after final agency action.

This period was not included when computing the original 306 day

delay, and thus the latter figure—large as it is—does not fully

convey the deprivation which occurred.

40a

final day of December, 1977, the Secretary shall have

reduced the maximum delay to one hundred and fifty

(150) days; and finally, by July 1, 1978, the maximum

delay shall be one hundred and twenty (120) days.

Failing this, any applicant who, on any of these days,

has an application for a hearing which has been pend-

ing longer than the allotted time, shall be entitled to

receive benefits as though favorable action had been

taken in his or her case, subject to termination upon .

a subsequent unfavorable hearing result. Excludable

from the foregoing time limitation shall be such

periods of delay as are caused directly by a peti-

tioner’s own failure to provide essential information

for adjudication. The parties will submit within fif-

teen (15) days a suitable proposed order to accom-

plish the purposes of this judgment.

SO ORDERED.

Dated at Hartford, Connecticut, this 29th day of

September, 1976.

T. Emmet CLaRIE,

Chief Judge.

APPENDIX D

United States District Court, District of Connecticut

Filed, Oct. 29, 3:00 p.m. 1976

[Clerk U.S. District Court Hartford, Conn. ]

GEORGE WHITE, ON BEHALF OF HIMSELF AND ALL

OTHERS SIMILARLY SITUATED

Us.

Davin MatHews, SECRETARY OF THE DEPARTMENT OF

HEALTH, EpucatTion, AND WELFARE, AS AN INDIVID-

UAL AND IN His OFrriciaL Capacity

Civil No. H-75-34

Judgment

IT IS HEREBY ORDERED that judgment be

entered as follows:

IT IS HEREBY ADJUDGED that defendant’s

failure to provide a prompt administrative hearing

and decision for those Title II disability insurance

benefit claimants residing in the District of Connecti-

cut who request an appeals hearing before an ad-

ministrative law judge denies plaintiff’s and his class’

constitutional right to due process of law and con-

flicts with the provisions of the Social Security Act,

42 U.S.C. § 405 et seq., and the Administrative Proce-

dure Act, 5 U.S.C. § 555(b) et seq.

(41a)

42a

IT IS FURTHER ORDERED AND ADJUDGED

THAT:

(1) The defendant is enjoined, ordered, and

directed to conduct administrative law judge hearings

requested pursuant to § 205(b) of the Social Security

Act, 42 U.S.C. § 405(b), residents of the District of

Connecticut claiming Title II disability insurance

benefits and to issue a written decision thereon within

the following time periods:

(a) For any request filed before December 31,

1977, within a maximum time of one hundred

eighty (180) days.

(b) For any request filed on or after Decem-

ber 31, 1977, but before July 1, 1978, within a

maximum time period of one hundred fifty (150)

days.

1978, within a maximum time period of one hun-

dred twenty (120) days.

For purposes of computing these time periods, the

aforementioned periods shall commence with the date

of receipt by defendant of a formal written request

for hearing filed pursuant to 20 C.F.R. § 404.918 and

shall end with the earlier of the date of mailing of the

written decision of the administrative law judge or

the end of the 180th, 150th or 120th day, as applicable,

following defendant’s receipt of the written hearing

request. In the event that the last day of the periods

enumerated in subparagraphs (a) through (c) falls

upon a Saturday, Sunday, or legal holiday (as defined

by Fed. R. Civ. P. Rule 6 (a)) the enumerated periods

shall run until the end of the next day which is not

a Saturday, Sunday, or legal holiday. The remaining

434

exceptions of the time periods are set out in para-

graph (4), infra.

(2) Defendant David Mathews is ordered to grant

prospective payments to those claimants who fail to

receive their final decision within the maximum delays

expressed in paragraph (1). In these instances, the

entitlement shall be the first month after the month in

which the maximum time period is exceeded and the

last month of the entitlement shall be the month in

which a written decision by the administrative law

judge is issued. Nothing in this order shall be con-

strued to require the payment of retroactive Title IT

disability insurance benefits based upon the alleged

date of disability onset. Nothing in this order shall be

construed to limit defendant’s right to recover pay-

ments made under this paragraph if it is finally deter-

mined that the individual so paid is not under a dis-

ability for any period in which payments are made

pursuant to this paragraph.

(3) The defendant after scheduling and rendering a

decision, in accordance with paragraph (1), txfra,

shall certify payment to the petitioner with all rea-

sonable dispatch.

(4) Exception from the maximum time periods sects

out m paragraph (1) occurs in those cases in which

the claimant

(a) Directly causes a delay by his or her own

failure to provide essential information for ad-

judication ;

(b) Requests a delay:

(d) The administrative law judge as a result

of evidence adduced at the hearing or in the

course of his post-hearing review in good faith

determines that a consultative medical examina-

444

tion or additional medical evidence in the posses-

sion of third parties is required. Provided, how-

ever, that the exception from the maximum time

limit shall be limited to the time required to pro-

duce the evidence. Such additional material shall

be obtained with all due diligence.

(5) Within sixty (60) days from the date of this

decree, defendant David Mathews shall submit to the

Court and to the plaintiff’s attorneys a detailed state-

ment or plan for implementing the relief required by

paragraphs (1) and (2) on a continued basis, and the

actual administrative steps taken to effectuate said

plan. Any disputes between the parties as to whether

the procedure and steps outlined by the defendant

will fulfill the requirements of this decree shall be re-

solved by the Court.

(6) Within sixty (60) days from the date of this

decree, defendant David Mathews shall submit to the

Court and to the plaintiff’s attorneys a detailed state-

ment or chart indicating the number of claimants

awaiting hearings or decisions which have not re-

ceived final administrative action. Furthermore, for

each individual claimant so situated, the chart will

state the original date of the petition, the date of a

hearing, or the final decision.

(7) Beginning with the petitions received on the

61st day after the entry of this decree and continu-

ing thereafter, defendant David Mathews is directed

to notify each petitioner for an administrative law

judge hearing of his rights under the decree by in-

eluding a brief statement of the rights received by

this decree. Said notice shall be included by attach-

ment to the defendant’s acknowledgement of the claim-

ant’s request for an administrative law judge hear-

ing. The plaintiff and defendant will provide the

454

Court with an agreed upon statement of notice to

the claimant.

(8) This decree shall be binding upon the Secre-

tary of Health, Education, and Welfare when adjudi-

cating hearings within the State of Connecticut.

(9) This Court shall retain continuing jurisdiction

over this cause for all purposes.

SO ORDERED.

Dated at Hartford, Connecticut, this 28th day of

October, 1976.

T. Emmet Cwarieg,

Chief Judge.

APPENDIX E

Tn the United States District Court for the

District of Connecticut

Grorck Wuirr, oN Brenartr oF HIMseELF AND ALL

OTHERS SIMILARLY SITUATED, PLAINTIFF

Davin MaTHEews, SECRETARY OF THE DEPARTMENT OF

Heartru, Epucation, AND WEL¥FARF, AS AN INDIVID-

VAL AND IN HIS CAPACITY AS SECRETARY, DEFENDANT

Civil Action No. H75/34

Affidavit of Danicl L. Schultz

CouNtTy OF ARLINGTON,

State of Virginia, ss:

I, Daniel L. Schultz, being duly sworn, say:

(1) I am the duly directed Acting Director of the

Bureau of Hearings and Appeals, Social Security Ad-

ministration, Department of Health, Education, and

Welfare.

(2) The following paragraphs detail the major

steps that are required or commonly involved in the

processing of the **typical” Title II disability insur-

ance claim at the hearing stage.

(a) Upon receipt of a request for hearing, which

may he filed in any office of the Social Security Ad-

ministration, clerical controls are established, and the

case is assigned to an administrative law judge servic-

(46a)

47a

ing the claimant’s geographical area. The existing

claim folder, which contains the claimant’s collected

records, is normally maintained at this point by the

Sureau of Disability Insurance in Baltimore, Mary-

land, and is simultaneously secured and mailed to the

designated hearing office.

(b) Upon receipt of the claim folder, the admin-

istrative law judge’s initial substantive task is a re-

view of the record to determine the necessity for and

extent of prehearing development of evidence which

may be required for a decision. While Section 404.1523

of the Social Security Administration Regulations

No. 4, 20 C.F.R. 404.1523 places the burden of present-

ing evidence of disability with the claimant, Section

404.927 of Regulations No. 4, 20 C.F.R. 404.927, pro-

vides that the administrative law judge ‘‘shall inquire

fully into the matters at issue * * *.’’ This latter sec-

tion requires that the administrative law judge assure

there is adequate development of all relevant and ma-

terial evidence that is reasonably available.

Additional development may be required if the

available medical evidence is lacking in precision and

detail, conflicting, inconclusive, or otherwise deficient.

Since a claim is ordinarily disallowed at the initial

and reconsideration levels due to the claimant’s failure

to meet one specific requirement of the statute or the

regulations, the adjudicating offices may not have re-

solved all other factors which may become relevant. An

administrative law judge must be prepared to cover

all matters relevant to an individual's claim to entitle-

ment in a de novo hearing, and he may, therefore, be

required to document heretofore unexplored issues.

For example, when a claim for disability benefits was

previously denied due te the claimant’s failure to meet

the special earnings requirements for insured status,

484

the administrative law judge may need to initiate sub-

stantial development of medical issues. If the prior

denial was based on medical considerations, the ad-

ministrative law judge may be required to decide

questions concerning the claimant's record of earnings

or, as it may be relevant to a claim for disability bene-

fits, his age.

Development of medical evidence can be a complex,

multistage process involving contacts with a wide

variety of medical sources, It is frequently necessary

for the administrative law judge to request either

directly or indirectly through a local Social Security

office or a designated State Agency, existing evidence

from private treating physicians, hospitals, and, or

other institutions and agencies. If the required evi-

dence is not forthcoming, the administrative law

judge may need to issue subpoenas, as he is em-

powered to do by Section 404.926 of Regulations No.

4, 20 C.F.R. 404.926. If the administrative law judge

concludes that the existing evidence is deficient in

quality, extent, or conclusiveness, he may find that it

is necessary te request that the cooperating State

Agency arrange and schedule one or more special con-

sultative examinations. Sequential examinations may

even be necessary, A social worker and a psychologist

may, for example, be asked to provide preliminary

reports to an examining psychiatrist. As documents

and reports are received, they can raise new medical

issues, which, in turn, must be explored. Further de-

velopment ean also be required to consider ongoing

changes in a claimant's medical condition.

Nonmedieal issues such as age and earnings can

also involve complex stages and procedures. For ex-

ample, resolution of questions concerning a claimant's

record of earnings may require multiple contacts with

494

employers, exploration of employee-employer rela-

tionships and, or review and analysis of business rec-

ords and tax returns.

(¢) In his prehearing consideration of the ease, the

administrative law judge may conclude that testimony

by a vocational expert and or medical advisor will be

essential or desirable to full consideration of the is-

sues. In such instances, the administrative law judge

takes the steps necessary to provide the expert with

copies of the evidence for prehearing review and

study. .

(d) In addition, the claimant's right to see the ree-

ord permeates every step of the decisional process

within the Bureau of Hearings and Appeals. There-

fore, the administrative law judge may need to pro-

vide the claimant or his representative with an

opportunity to examine the evidence prior to the

hearing.

. (e) Upon completion of this prehearing considera-

tion and development of the case, the administrative

law judge must fix a time and place for the hearing.

While the general rule observed is to schedule hear-

ings according to dates of requests, other factors are

also given consideration. For example, if an adminis-

trative law judge plans a trip to a particular town, he

Is expected, for reasons of efficiency, economy, and

claimant service, so schedule, to the extent possible,

all eases pending in that area, regardless of the dates

of requests. It may also be necessary to schedule a

hearing out of sequence to account for special cireum-

stances, such as the temporary availability of wit-

nesses, particularly expert witnesses such as_physi-

cians or vocational experts, or grave hardship. j

(f) Section 404.923 of Regulations No. 4, 20 C.F.R.

404.923, requires the administrative law judge, absent

OOA

Waiver by a party, to mail the parties written notice

of hearing not less than ten (10) days prior to the

time set for the hearing. If it becomes necessary to

change the date or place of the hearing, the adminis-

trative law judge must also provide the parties rea-

sonable notice of such change (Section 404.925 of Reg-

ulations No. 4).

(g) At the hearing, the claimant is afforded an op-

portunity to examine the record, to object to proposed

exhibits, to submit additional documentary evidence,

to testify, to call witnesses, and to state oral argu-

ments as to the facts and law.

(h) Exploration of the issues at the hearing can

demonstrate conflicts or inadequacies in the available

documentary evidence. In such cases, the administra-

tive law judge’s responsibility to inquire fully may re-

quire him to seek additional evidence through any or

all of the developmental techniques described in item

(b) above. Situations also arise in which the adminis-

trative law judge must adjourn a hearing or schedule

a supplemental hearing for the purpose of receiving

additional testimony, such as that of a vocational ex-

pert, the need for which was not apparent during pre-

hearing consideration of the case.

(i) Unless the claimant waives his right to see

evidence secured after a hearing, he or his representa-

tive must be afforded a reasonable opportunity to ex-

amin and comment on such evidence.

(j) The administrative law judge is also required,

in accordance with provisions of Section 404.930 of

Regulations No. 4, 20 C.F.R. 404.930, to provide the

parties a reasonable posthearing period to file briefs

as to facts or law.

ee ee ee ee ee ry

SIA

(k) As soon as practicable after completion of the

record, the administrative law judge writes and issues

his decision.

(3) Currently, the Burean of Hearings and Appeals

is facing a nationwide problem of backlogs in requests

for hearings which extends to residents of Connecti-

cut. The roots of this backlog problem are essentially

three-fold—(1) a very large one-time volume of claims

for Black Lung benefits under the Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. 901 et seq.,

and the introduction of Title NVI of the Social Se-

eurity Act, Supplemental Security Income for the

Aged, Blind, and Disabled, 42 U.S.C. 1381 et seq., at

a time when the program administered under Titles

IT and XVTIT of the Social Security Act, Old Age,

Survivors, Disability and Health Insurance was ex-

periencing rapid growth; (2) a lack of flexibility in

the use of three distinct corps of legislatively created

hearing officers (Title II and XVIII Administrative

Law Judges, Black Lung Administrative Law Judges,

and SSI Hearing Examiners): and (3) difficulties en-

countered in appointing additional administrative law

judges,

After the inception of the Black Lung program, the

Bureau of Hearings and Appeals received approxi-

mately 75,000 requests for hearings under this pro-

gram. Since the Social Security Administration's and

this Bureau's jurisdiction over this program was

under the legislation temporary ending with claims

filed on December 31, 1971 (later extended by P.L.

92-603, §5(1) to June 30, 1973), the Bureau was faced

with a massive, one-time workload. It was virtually

impossible te appoint administrative law judges to

handle this one-time hearing workload, for a redue-

tion in force which would terminate the appointments

52a

axiomatically would follow. In December, 1971, over

2 vears after enactment of the Black Lung Program,

we received the necessary Congressional authority to

appoint a special administrative law judge corps for

this program. As an interim measure, the Bureau was

required to use our existing Title II administrative

law judges to hold a substantial number of Black

Lung hearings. This resulted in a further buildup of

our pending Title II hearing workload which had in-

dependently increased from 42,573 hearing requests in

FY 1970 to 76,281 in FY 1974.

In the midst of this problem, Title XVI of the So-

cial Security Act, the Supplementary Security Income

program, became effective as of January 1, 1974. The

enabling legislation authorized is to appoint hearing

examiners under this title. The appointment process

which was patterned upon the Civil Service Commis-

sion’s procedures for the selection of Title If admin-

istrative law judges to protect against allegations that

the Bureau had selected less than independent, quali-

fied hearing examiners required an extended period of

time and required us, as an interim measure, to use

Title II administrative law judges for the SSI hear-

ings. In addition, a continuing problem developed with

respect to the SSI workload, since many of the SSI

claims were coupled with Title IT social security

claims. In this situation, the Bureau was required to

utilize a Title IT administrative law judge to hear the

ease, This lack of flexibility and delays in appoint-

ments resulted in a buildup of an abnormally high

national hearing backlog which reached an all time

high of 113,000 in April, 1975.

(4) After preliminary study, the Social Security

Administration has made a concerted effort to reduce

the hearings backlog and initiatives have been under-

53A

taken since January, 1975 to reduce this backlog and

' processing times. First a case processing goal was

established in an effort to identify more precisely the

scope of the remedy required—i.e., to stabilize the

workload by the end of FY 1976.

One of the first measures taken to implement this

goal was to identify areas where cases could be proc-

essed more quickly by the addition of support person-

nel and/or more sophisticated equipment. From Jan-

uary 1975 through mid-September, 1975, an additional

258 support personnel were authorized for hearings

officers who had demonstrated that they could dispose

of more cases with such assistance. In addition, the

Bureau upgraded the quality of office equipment avail-

able to hearing officers, including the placement of

over 90 automatic magnetic card typewriters, so that

decisions might be rendered more quickly. The first

step of an automatic case control and case locator

system has been installed and will, when installation

is cor plete, allow for greater management control over

the caseload and hopefully a reduction in the volume —

of reporting required by the hearing officers.

To further relieve the hearings officers of non-judi-

cial functions and/or functions unrelated to the hear-

ing of cases, the Bureau enlarged the professional

support staff available to the hearings officers. Initi-

ally, experienced central office hearings and appeals

analysts were detailed to the hearings officers to assist

hearings officers in drafting decisions and obtaining

needed medical evidence. In addition, a new program

was instituted to hire recent law school graduates to

continue and expand this professional staff support.

This latter program referred to as the Staff At-

torney Support Program, was instituted in August

1975 with 160 law graduates atending in-depth train-

ing sessions throughout the country. Currently, there

are over 200 of these Staff Attorneys with three

located in the offices that service the State of Connect-

icut. Plans are underway to increase this to over 500

Staff Attorneys nationwide. The Staff Attorneys do

not, of course, function as adversary counsel for the

government. Rather, they serve a function analogous

to that of a judical law clerk. The initial results of this

program are quite favorable in terms of increasing the

productivity of the administrative law judges to whoin

the legal assistants have been asigned.

The overall impact of all of these initiatives on the

hearing process can be seen in the 620 national in-

crease in performance from the lowest point in the

fourth quarter of FY 1974 through the end of the

first quarter of FY 76, Nationwide, average number

of dispositions per hearing officer for the period Sep-

tember 13 through October LO, 1974, was 14.8; the

average for the period September 14 through October

11. 1975, was 21.1. In the offices servicing Connecticut,

there were also increases in) production, For the

period September 15, 1974 to January 4, 19%

(monthly figures not available) the average dispost-

tions per administrative law judge was 14 in the

Hartford oftice. For the period September 14, 1975

to December 6, 1975, the average rose te 20.5, In the

Providence, Rhode Island office, for the same periods,

the average increased from 11 to 15.2, respectively.’

1 At the beginning of the latter period. one of the three Provi-

dence administrative law judges. an experienced administrative

law judge. left BILA to assume a GS-16 administrative law judge

position with another agency. The administrative law judge was

replaced by an administrative law judge from the Hartford office

who had only entered on duty with BELA in February, 1975. “The

loss of our Tithe IT administrative law judges. who are classified

ieee eee

| an

oh A

Overall, the increase in productivity has resulted in a

significant reduction of the backlog of pending cases

at a rate of about 1,000 cases per month nationwide.

In addition, experience has shown that a substantial

miunber of reversals at the hearing level oceur as a

result of a deterioration in the claimant's condition or

the receipt of new and material evidence, and an “in-

formal remand” procedure was devised in erder to

award benetits, if possible, without the necessity for

a hearing. Accordingly, all pending hearings requests

were recently sereened for the possibility of im-

mediate favorable action or to obtain additional evi-

denee which could possibly result in such action. These

were processed promptly and resulted in favorable

action being taken in 5,500 cases, Also, steps have been

taken to expedite favorable hearing decisions.

(9) Realizing that the Bureau of Hearings and

Appeals was experiencing a significant problem Con-

eress held extensive hearings during calendar year

1975, As a result of these hearings, Congress pas@d

H.R. 10727 which was signed into law by the Presi-

dent on January 2, 1976, as P.L. 94-202. This law

provides the Secretary of Health, Education and Wel-

fare with authority to mold our three existing corps

of hearing officers into one corps which ean deal

Hexibly with the hearings warkload. This will have a

very beneficial impact on the social security hearing

by the Civil Service Commission at the GS-15 level, to other Fed-

eral agencies is a recurring problem. During the period of Jan-

wary, 1973. through April, 1975, 59 Title IT administrative law

judges separated from service: 14 of these were individuals assum-

ing GS-16 aulministrative law judge positions. A class of 24 ad-

ministrative law judges are entering training in January 1976.

One of these administrative law judges is scheduled for the Prov-

ilence office. These 24 entering administrative law judge train-

ing are all that could be obtained from an original request for 56.

SOA

workload. We anticipate that it will enable us within

one year to reduce the workload to manageable pro-

portions, so that a claimant’s average waiting time

for a hearing will not exceed ninety days.

(6) Our cumulative experience with the Title II

hearings process suggests that a 90-day processing

period represents the optimum period that can be

expected where (1) oral hearings are held locally; (2)

consultative medical examinations and other prehear-

ings development may be required; (3) advance notice

of the hearing must be provided; (4) arrangements

must be made for appearance of expert witnesses,

when required; (5) consultative medical examinations

and other posthearings development may be required ;

and (6) time must be taken to prepare a well-reasoned

decision based on a sound record. A 60 day processing

time limitation would deprive a claimant of having

the record fully developed and would result in cases

being denied which could possibly be paid based on

a consultative examination or the receipt of other

additional evidence.

(7) It would be inappropriate for the Bureau to al-

locate a sufficient number of personnel to process hear-

ing requests from residents of the State of Connecti-

eut within 60 days as such action would interfere

with the rights of other individuals who have filed re-

quests for hearings. To do this for each claimant now

awaiting a hearing in Connecticut would require that

approximately 56 hearing officers be assigned to the

area full-time for a 60 day period. This is equivalent

to devoting all of the existing hearing officers in Re-

gion I and 60% of those in Region II, plus their

supporting staffs, solely to the State of Connecti-

cut for this period. These regions cover Massachusetts,

Per 4

JIA

gg Maine, New Hampshire, Vermont, Rhode

2 New York, New Jersey, and Puerto Rico

Pen Situation in those places, presently not

signif cantly different from Connecticut, would be sub-

stantially worsened. |

Dante L. Scuvrrz,

Acting Director,

Bureau of Hearings and A ppeals.

Subseribed and sworn to before me this 13th dav

of January, 1976. ,

Marityxw H. GARRISON,

Notary Public.

My Commission expires: November 29, 1976

US COVERN@ENT Pein NG OFFICE torr

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.