# Petition — Califano v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0215%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 908 ## Text | 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 v. 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 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. (c) For any request filed on or after July 1, 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: (c) Fails to appear for scheduled hearing; or (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- 4a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0215%3A1. Public record. Not legal advice.