# Petition — Heckler v. Day > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0474%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 104 ## Text pe one FILED aa | 82-137] FEB 34 1993 dam lnithidain |. STEV AS, CLERK In the Supreme Court of the Anited States OCTOBER TERM, 1982 SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. LEON S. DAY, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Rex E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH 8S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General WILLIAM KANTER JOHN F. CORDES Attorneys Department of Justice Washington, D.C. 20530 (202) 638-2217 QUESTIONS PRESENTED 1. Whether, in the absence of any showing of bad faith, delays in the administrative adjudication of claims for disability benefits under Title II of the Social Secu- rity Act, 42 U.S.C. (& Supp. IV) 401 et seq., arising from a substantial backlog of cases and resource limita- tions, violate claimants’ statutory right to “reasonable notice and opportunity for a hearing” (42 U.S.C. 405(b)) and justify judicial imposition of time limits on the processing of such claims. 2. Whether, in the absence of statutory authoriza- tion, a court may enforce judicially imposed processing deadlines by requiring the Secretary of Health and Hu- man Services to pay interim benefits from the Disabili- ty Insurance Trust Fund to claimants who have not been found entitled to such benefits but whose cases have not been decided prior to the deadlines. II PARTIES TO THE PROCEEDING The petitioner is the Secretary of Health and Human Services. Richard S. Schweiker, the appellant in the court of appeals, resigned as Secretary effective Febru- ary 4, 1983, and his successor has not yet been ap- pointed. The respondents are Leon S. Day and Amedie Maurais, who are representatives of the following class of claimants for disability benefits under Title II of the Social Security Act, 42 U.S.C. (& Supp. IV) 401 et seq.: All present and future Vermont residents seeking to secure Social Security disability benefits who, following an initial determination by the [Secre- tary] that no disability exists, experience an unrea- sonable delay in the scheduling of and/or issuance of decisions in reconsiderations and fair hearings. App. D, infra, 12a n.1.! 1 Respondents Day and Mawais had received an ALJ hearing and decision prior to the district court’s certification of the class on June 14, 1979. The district court held that the case was not moot, however, concluding that the case fell within the excep- tion recognized in Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975), for situations in which the challenged condition is tempo- rary and the issue as regards any particular class representa- tive might become moot before the district court even could rule on the class certification issue. C.A. App. 78a. See also Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); United States Parole Commission v. Geraghty, 445 U.S. 388, 398-399 (1980). The dis- trict court also found that respondents Day and Maurais would be suitable representatives of the class in these circumstances. C.A. App. 77a; see United States Parole Commission v. Geraghty, supra, 445 U.S. at 405-407. TABLE OF CONTENTS Page SN hc 6 velss'e ona tacss £4 Ghee Haabee on 1 DOE CL cc caus cwhigutivan Wine eebare ae ot l Statutory provision involved .................. 2 NENA shan v5. c0ds'qnd decries pendbaaevemmas 2 Li EEE op cdchwuaacawsrcaveveces 4obs 2 2. The proceedings in this case ............ 6 Reasons for granting the petition.............. 11 ass ss ceases sek auch deten'onn eles 24 RC hdd Una ancy dans 645 mee cee la LEE uth oveue Gal wks ca taekweeeckee swe 10a ETS «.. duslen'steexbuleb nade hence elerekes lla ETE. PE a's bn cab kKac « 6bas Ceaeaa haa een 12a SEEN, cilicuwateaace diawee Gn te cakeeones 2la SE ns Sd s sad od iii o ce aeons wae 32a TABLE OF AUTHORITIES Cases: Army and Air Force Exchange Service v. Sheehan, No. 80-1437 (June 1, 1982)..... 22 Barnett v. Califano, 580 F.2d 28 ....... 7, 8, 10, 12, 14, 15, 17 Blankenship v. Secretary of HEW, 532 Py GI EE sé sc nae vne sie sebuah 13-14, 17 Blankenship vy. Secretary of HEW, _ 2 > Sa eee 10, 13, 15, 46 Califano v. Yamasaki, 442 U.S. 682 ...... 21 Caswell v. Califano, 583 F.2d9..... 9, 12, 15, 17 Crosby v. Social Security Administration, No. 81-675-T (D. Mass. Nov. 16, 1982) ... 13, 16 Ill IV Cases:—Continued Page Federal Crop Insurance Co. v. Merrill, 332 OE a ID nie ata a bd 23 Finch v. Schweiker, No. Civ. Nos. C 75-0185 L(A), C 76-0441 L(A) (W.D. Be, POs iy SO) cee wcccnvecasvngneaes 13, 14 FTC vy. J. Weingarten, Inc., 336 F.2d 687 . 16 INS v. Miranda, No. 82-29 (Nov. &, 1982) . 23 Lassiter v. Department of Social Services, Ge EEE BO wice'cdectvcdseateunendgpeecs 19 Lehman v. Nakshian, 453 U.S. 156 ....... 23 Little v. Streater, 462 U.S. 1 ...cccccccees 19 Martinez v. Califano, Civ. No. 73-C-900 a SR ge Rp OS :. e eer 12, 16, 17 Mathews vy. Eldridge, 424 U.S. 319 ..... 4, 5, 18, 19, 21, 22 Open America vy. Watergate Special Prose- cution Force, 547 F.2d 606 ..........6.. 20 Pine Hill Coal Co. v. United States, 259 TENG toca 1u COA US as Faire eee OS 22 Schweiker v. Hansen, 450 U.S. 785.... 11, 12, 23 Sharpe v. Harris, 621 F.2d 530 .... 10, 12, 16, 17 United States v. Testan, 424 U.S. 392 ..... 22, 23 Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, ed, RR EE nsec kbSabaede enews 21 White v. Mathews, 559 F.2d 852, cert. Gented, 405 U.S. 906.62. wvescccescnsus passim Wright v. Califano, 587 F.2d 345 .. 10, 14, 15, 16 Constitution, statutes and regulations: United States Constitution: Article 1, Section 9, Clause 7 ......... 22 Vv Constitution, statutes and regulations:— Continued Page Due Process Clause (Fifth Amend- te ERE a en eae 9 Administrative Procedure Act, 5 U.S.C. ... 4 Social Security Act, Title II, 42 U.S.C. (& i) oF 2 Section 205(a), 42 U.S.C. 405(a)....... 13 Section 205(b), 42 U.S.C. (Supp. IV) MEE Ween a Genie cackt chess ises 3, iP 23 Section 205(g), 42 U.S.C. 405(g)....... 4 Section 205(i), 42 U.S.C. 405(i)........ 10, 22 Section 221(a), 42 U.S.C. 421(a)....... a Section 221(c), 42 U.S.C. 421(e) ....... 3 Section 221(i), 42 U.S.C. (Supp. IV) 421 MT aM btn do Radleie'e cc bodekkeeeccine 4 Section 223(a)(1), 42 U.S.C. (& Supp. | ES a 22 Section 223(d)(2)(A), 42 U.S.C. RS aR a 2 Social Security Act, Title XVI, 42 U.S.C. (& I Se NE OO OO oi enn ocavkcasss 2 Section 1611(a), 42 U.S.C. 1382(a)..... 18 Section 1611(a)(2)(B), 42 U.S.C. eee eee 2 Section 1631(c\(2), 42 U.S.C. 1383(e2).. 5, 18 Social Security Disability Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 441 et seq.: Section 304(a), 94 Stat. 457 ........... 5 Section 308, 94 Stat. 458 ............. 6, 19 Pub. L. No. 97-455, 96 Stat. 2497 et seq.: Section 2, 96 Stat. 2498. .............. 6, 21 Section 3, 96 Stat. 2499 .............. 20 Section 4, 96 Stat. 2499 .............. 6, 21 VI Constitution, statutes and regulations:— Continued Pub. L. No. 94-202, Section 3, 89 Stat. NN ete tease e ree anes 20 C.F.R.: Section 404.907-404.921..........0.08- ee i ev beeert eens Section 404.929-404.961...........065. Section 404.967-404.983 ..........000- EN MRED Co coc cv ccccevocecsces rr eee Part 416, Subpart N .........--eeeeee Miscellaneous: 128 Cong. Rec. (daily ed. Dec. 21, 1982): Department of Health and Human Services, Office of Hearings and Appeals, Key Workload Indicators (Oct. 1982)......... Department of Health and Human Services, Social Security Annual Report to the Congress for Fiscal Year 1981 (1982) .... Goldman, Administrative Delay and Judi- cial Relief, 66 Mich. L. Rev. 1923 (1968) . J. Mashaw et al. Social Security Hearings and Appeals: A Study of the Social Secu- rity Administration Hearing System Re hack bss cenea ethan noeecedubsces Note, Judicial Resolution of System Delays in Social Security Hearings, 79 Colum. L. A, EP UTED vcbicvesccvcccesnsvesnces Page 11 20 VII Miscellaneous:—Continued teport of the Staff of the House Subcomm. on Social Security. of the House Comm. on Ways and Means, 94th. Cong., Ist Sess.. Appeals Process: Areas of Possible Administrative or Legislative Actions, CRANES: PG BTU nedioic's cck chest snes ccs Subcomm. on Social Security of the House Comm. on Ways and Means, 97th Cong., Ist Sess., Social Security Hearings and Appeals: Pending Problems and Pro- posed Solutions (Comm. Print 1981) ..... Page 19 In the Supreme Court of the Anited States OCTOBER TERM, 1982 No. SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. LEON S. DAY, ET AL. PETITION FOR A WV IT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of cer- tiorari 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, infra, la-9a) is reported at 685 F.2d 19. The opinions of the district court (Apps. D & E, infra, 12a-20a, 21a-31a) are unreported. JURISDICTION The judgment of the court of appeals (App. B, infra, 10a) was entered on June 28, 1982, and a petition for re- hearing was denied on September 17, 1982 (App. C, infra, 1la). On December 7, 1982, Justice Marshall ex- tended the time within which to file a petition for a writ of certiorari to and including February 14, 1983. The ju- risdiction of this Court is invoked under 28 U.S.C. 1254(1). 2 STATUTORY PROVISION INVOLVED Section 205(b) of the Social Security Act, 42 U.S.C. (Supp. IV) 405(b), provides in pertinent part: The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Any such decision by the Secretary which involves a de- termination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understardable language, setting forth a discussion of the evidence, and stating the Secretary’s determination and the rea- son or reasons upon which it is based. Upon re- quest by any such individual or upon request by a wife, divorced wife, widow, surviving divorced wife, surviving divorced mother, husband, widow- er, child, or parent who makes a showing in writ- ing 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, af- firm, modify, or reverse his findings of fact and such decision. STATEMENT 1. Background Title II of the Social Security Act, 42 U.S.C. (& Supp. IV) 401 et seg., provides, inter alia, for the pay- ment of disability benefits to insured individuals who, because of physical or mental impairment, are unable to do their previous work or to engage in any kind of sub- stantial gainful work that exisis in the national economy. 42 U.S.C. 423(d)(2)A). Disability benefits also are payable under the Supplemental Security In- come (SSI) program established by Title XVI of the Act, 42 U.S.C. (& Supp. IV) 1381 et seg. See 42 U.S.C. 1382(a)(2)(B). Both statutory provisions require the 3 Secretary, in determining whether a claimant is dis- abled, to consider the claimant’s physical and mental impairments and the vocational factors of age, educa- tion, and work experience. The disability progams established by Title II an?’ AVI “are of a size and extent difficult to comprehend.” Richardson vy. Perales, 402 U.S. 389, 399 (1971). In fis- cal year 1981 alone, approximately 2.3 million claims for disability benefits were filed under the two titles.? To provide for an orderly determination of the eligibility of this number of claimants, Congress and the Secretary have devised a four-level system of administrative con- sideration of disability claims. Under the Title II program, with which this case is concerned, the determination whether a claimant is un- der a disability and the date on which the disability be- gan or ceased is made by a state agency in the first in- stance. 42 U.S.C. 421(a); 20 C.F.R. 404.1503. By regulation, the Secretary has provided that if the claim- ant is dissatisfied with the initial eligibility determina- tion, he may request a de novo reconsideration by the appropriate state agency. 20 C.F.R. 404.907-404.921 and 404.1615. In fiscal year 1981, more than 413,000 re- quests for reconsideration were processed. If the decision after reconsideration by the state agency is adverse to the claimant, he is entitled to a hearing by the Secretary in the same manner as provid- ed in 42 U.S.C. (Supp. IV) 405(b) for all other claimants under the Old Age, Survivors and Disability Insurance (OASDI) Program. See 42 U.S.C. (Supp. IV) 421(c); 20 C.F.R. — 404.929-404.961. Under 42 U.S.C. (Supp. IV) 405(b), the Secretary is required to provide “reasonable notice and opportunity for a hearing” with * Department of Health and Human Services, Social Security Annual Report to the Congress for Fiscal Year 1981, at 23, 26 (1982). * Department of Health and Human Services, Office of Hear- ings and Appeals, Key Workload Indicators 15 (Oct. 1982). 4 respect to “decisions as to the rights of any individual applying for a payment” of benefits under Title II. If the claimant is dissatisfied with the decision rendered after the hearing, he may take an administrative appeal to the Appeals Council in HHS. 20 C.F.R. 404.967-404.983. After the individual has exhausted his administrative remedies in this fashion, he may seek ju- dicial review of a final denial of benefits pursuant to 42 U.S.C. (Supp. IV) 405(g). See generally Mathews v. Eldridge, 424 U.S. 319, 335-339 (1976).4 The administrative hearings provided for in 42 U.S.C. (& Supp. IV) 405(b) are conducted by a corps of Administrative Law Judges (ALJs) in HHS. 20 C.F.R. 404.929. The total number of ALJ hearings requested annually under all Social Security programs increased from approximately 72,000 in fiscal year 1973 to more than 320,000 in fiscal year 1982.5 The vast majority of these hearing requests are in disability cases.* The in- crease in the number of hearing requests is expected to continue in future years, in part because of a legislative requirement that the Secretary provide for a periodic review of the eligibility of individuals who are already receiving disability benefits—a process that predictably will result in an increase in the number of recipients whose benefits are terminated and who subsequently request reconsideration and an ALJ hearing. See Sec- tion 221(i) of the Act (42 U.S.C. (Supp. IV) 421 note), 4 Similar procedures are followed in SSI disability cases un- der Title XVI of the Act. See 20 C.F.R. 416, Subpart N. 5 Key Workload Indicators, note 3, supra, at 1. ® In fiscal year 1981, more than 250,000 of the 281,737 hearing requests were in disability cases. 1981 Annual Report, note 2, supra, at 23, 26. In fiscal year 1980, more than 95% of all hear- ing requests involved Title II or Title XVI disability claims. Subcomm. on Social Security of the House Comm. on Ways and Means, 97th Cong., Ist Sess., Social Security Hearings and Appeals: Pending Problems and Proposed Solutions, 2 (Comm. Print 1981). 2 as added by Section 304(a) of the Social Security Disa- bility Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 457.7 To meet this greatly increased workload, the number of ALJs in HHS was increased from 420 in fiscal year 1973 to 813 in October 1982. The support staff per ALJ was more than doubled during this same period, and there is now an average of more than four support per- sonnel for each ALJ. The result of these and other administrative initiatives has been to increase the aver- age number of dispositions per ALJ each month from 14 in 1973 to 34 in 1982. Thus, today, on the average, an ALJ decides 1% cases each working day.* During this same 10-year period, the average processing time from the date on which an evidentiary hearing was requested to the date on which the ALJ rendered his decision varied between a high of 288 days in fiscal year 1976, when Mathews v. Eldridge was decided (see 424 U.S. at 341-342), to a low of 151 days in 1979. In fiscal year 1982, tle average processing time was 174 days, the same as it had been in 1973, thereby indicating that HHS now has been able to absorb the more than four- fold increase in its hearing caseload since 1973 without further extreme impact on the claimants’ interest in receiving a hearing within a reasonable period. Congress repeatedly has studied the problem of the bacxlog of disability cases arising from the increase in hearing requests (see pages 19-21, infra), but it has de- clined to impose deadlines for the holding of hearings or the rendering of decisions by the ALJs. For example, although Congress provided in 42 U.S.C. 1383(¢)(2) that Title XVI claims generally are to be determined within 90 days of the request for a hearing, Congress expressly excepted disability cases from that deadline, apparently because of the complexity of the disability determination. In 1980, Congress directed the Secre- * See Comm. Print, note 6, supra, at 1. * Key Workload Indicators, supra, note 3, at 1. Hj tary to submit for its consideration a report “recom: mending the establishment of appropriate time limita tions governing decisions on claims for benefits under title I] of the Social Security Act,” including a recom- mended time limitation for all four levels of administra. tive review, Pub, L, No, 96-265, Section 308, 94 Stat, 458, However, Congress took no action to impose such deadlines after receiving the Secretary's report (App, BE, infra, 2aan.7), Finally, in December 1982, when Congress did take affirmative action to reduce the impact of the time needed to adjudicate claims, it did so only in cases in- volving the cessation of the payment of disability bene- fits to individuals who previously had been found to be eligible, Congress required that the state agency fur- nish an opportunity for a face-to-face evidentiary hear: ing at the reconsideration stage in these termination cases in addition to the opportunity for an ALJ hearing at a later date, Congress further provided, on a one: year experimental basis, that the claimant in a termina: tion case may elect to continue to receive benefits through the ALJ stage, subject to recoupment u he is found to have been ineligible, Pub, L.No, 97-455, See- tions 2 and 4, 96 Stat, 2498, 2499, Congress did not pro- vide, however, for a face-to-face hearing at the recon- sideration stage in the case of new applications for benefits; nor did it authorize the payment of interim benefits pending the ALJ's decision following « hearing on a new application, 2. The Proceedings In This Case a. This class action was filed in the United States District Court for the District of Vermont on Novem- ber 15, 1978, challenging the period of time that elapsed in Title II disability cases in Vermont between a re- quest for recc:.sideration and the decision on reconsid- eration and between a request for a hearing and the convening of the hearing, Respondent Day, who had been receiving disability benefits, was initially found to be no longer disabled in December 1977, He requested a reconsideration of this determination on December 21, 1977, and his claim was denied after reconsideration on June 6, 1978—167 days later, Day then requested an ALJ hearing, That hearing was held on December 4, 1978, soon after Day filed this action and 173 days after he had requested the hearing, On January 17, 1979, the ALJ issued a decision reaffirming the cessation of bene- fits (App, D, infra, 13a-1da), Respondent Maurais, who intervened in this suit on December 1, 1978, was notified in April 1978 that his disability had ceased, He requested reconsideration of that initial determination on June 2, 1978, and an adverse reconsideration deci- sion was rendered on January 4, 1979—215 days after his request, Mauruis then requested an ALJ hearing, and the hearing wae held 65 days later (id. at 14a), b, On December 28, 1978, the district court granted partial summary judgment for respondents with re- spect to the timing of ALJ hearings, Relying on the Second Circuit's prior decisions in White v. Mathews, 559 F.2d 852 (2d Cir, 1977), cert. denied, 435 U.S, 908 (1978), and Barnett vy, Califano, 580 F.2d 28 (2d Cir, 1978), the district court held that the provision in 42 U.S.C, 405(b) for the Secretary to afford a claimant “reasonable notice and opportunity for a hearing” re- quires that the ALJ hearing be conducted within a “reasonable” time after it is requested (App, D, infra, 15a), In White v, Mathews, supra, a class action of Ti- tle IT claimants in Connecticut, the court of appeals had held that the average period of 211.8 days between a request for a hearing and the decision following a hear- ing did not afford an opportunity for a hearing within a reasonable time and ordered the Secretary to reduce that time period for Connecticut claimants to 120 days, 559 F.2d at 858-860, In Barnett vy, Califano, supra, the court of appeals had held thet the period of 6 or 7 months that ordinarily elapsed between a hearing re- quest and the hearing date for Title XVI disability 5 claimants in Vermont was unreasonable and ordered that this tume be reduced to 90 days, 580 F.2d at 31-33, The district court acknowledxed that the Social Secu- rity Administration (SSA) “has made admirable strides in reducing the average length of delay experienced by claimants a few years ago” (App. D, infra, 17a), Never- theless, on the basis of the holdings in White and Barnett and evidence in this case that 43% of Vermont residents who requested hearings on their Title II disa- hility claims waited more than 90 days for their hear- ings, the court found that a substantial number of claimants had been denied their statutory right to a hearing within a reasonable time, Accordingly, the court ordered that ALJ hearings be held within 90 days of a request, subject to certain exceptions for delays at- tributable to the claimant (id, at 19a; App. F, tn/fra, 33a-34a),” c, On August 19, 1981, the district court granted summary judgment for respondents on the reconsidera- tion aspect of the case as well, Although the Act does not require that there be a de novo reconsideration by a state agency or that any such reconsideration be held within a reasonable time, the court reasoned that re- consideration is an administrative prerequisite to an ALJ hearing anc that delays in the reconsideration pro- cedures trench on the statutory duty to provide a hear- ing within a reasonable time (App. E, infra, 27a), The court noted that for the years 1977-1980, reconsidera- tion processing time ranged between 17 and 251 days in Vermont, with a mean processing time of 68 days, and that approximately 35% of the reconsideration requests took more than 90 days to process, The court recog- nized that it is often necessary to generate additional evidence on reconsideration, but held that a period of time for reconsideration in excess of 90 days is unrea- * The district court previously had imposed a 90-day deadline for the convening of a hearing is, Tithe XVI disability cases in Vermont. See Barnett v, Califano, 680 F.2d 28 (2d Cir, 1978), 9 sonable except in certain situations in which delay is at- tributable to the claimant (id. at 30a; App. F, infra, 33a), '° The district court also ordered the Secretary to pay interim disability benefits to any claimant who has not received a reconsideration determination or hearing within 180 days of the request for reconsideration or has not received a hearing within 90 days of his hearing request, even though the claimant has not yet been found by the State or the Secretary to be entitled to such benefits. These benefits were made subject to re- coupment by the Secretary if the claimant later were found not to be eligible (App. E, infra, 30a-31a; App. F, infra, 34a-35a). d, The court of appeals affirmed (App. A, infra, la-@a), The court of appeals expressed its “sympath[y] with the severe problems that beset SSA” and its “un- derstand{ing) that [the district court’s] decision may have a significant impact on its operations” (id. at 6a). But the court nevertheless concluded that judicially imposed timetables were appropriate for the processing of the “flood of claims” confronting SSA (ibid., quoting White v. Mathews, supra, 559 F.2d at 859). The court of appeals “share[d} the First Circuit's con- cern that ‘if the Secretary’s resources truly are inade- quate to the task, the more litigious of the applicants may gain an advantage over the less assertive’” (App. A, infra, 7a, quoting Caswell v. Califano, 583 F.2d 9, 17 (ist Cir. 1978)). The court concluded, however, again quoting the Caswell! decision, that it should not be deterred from awarding relief to the claimants be- fore it by “‘the alleged inability of the [Secretary] fully ‘© Because the district court found violations of the Social Se- curity Act, it did not reach respondents’ arguments that the challenged practices violated the Due Process Clause of the Fifth Amendment or the Administrative Procedure Act (App. D, infra, 15a; App. E, infra, 26a). The court of appeals likewise did not consider those arguments (App. A, infra, 9a n.8). to meet Nis obdDligations to otners hid.). The court ol ie. appeals also recognized “that in the last five years Con- gress has involved itself heavily in the administration of the Act” and that “Congress has refused to impose its own deadlines,” but the court viewed Congress’ failure to enact clarifvin ‘ legislation as Be ¢ rhaps im plying that Congress is satisfied that the problem of ‘delay is bel Ing handled effectively OV tne courts App. A, infra, 7a). The court of appeals also roved the district court’s ext en sion of its holding in White to the reconsideration level d. at Ja-Sa In sustaining judicially imposed time limits, tae court of appeals explicitl, pnw 0 — re infra, 7a-8a) that its decision conflicte , Wr v. Cali- ] fano, 587 F.2d 345 (1978), in which t the Seventh Circuit held that the time between request and hearing did not warrant any judicial intervention, and was at odds with Blankenship v. Secreta f HE W, 587 F.2d 329, 335 1978), in which the Sixth | Circuit eschewed judicially imposed deadlines and instead ordered the Secretary to promulgate nationwide regulations to implement the reasonable time requirement. The Second Circuit nev- ertheless adhered to its prior precedent in White, Barnett, and Sharpe vy. Harris, 621 F.2d 530 (1980) (App. A, infra, 6a-a Finally, the court of appeals rejected the contention hat the payment of interim benefits following the viola- tion of judicially imposed deadlines is barred by 42 U. S.C. 4050), which limits payments from the Disabili- ‘ Insurance Trust Fund to those made “[u)pon final fire of the Secretary or upon final judgment of any court of competent jurisdiction, that [the] person is en- titled to any payment or payments” under Title II. In the court’s view, this provision does not “‘{e]xcluie the possibility of interim payments ordered by a court exer- cising its remedial power” (App. A, infra, 8a, quoting White v. Mathews, supra, 559 F.2d at 861). The court of appeals did not believe that its earlier holding in White, which awarded interim benefits in the absence of statutorv authorization, was undermined by this Court’s intervening decision in Schweiker v. Hansen. 150 U.S. 785 (1981). The court stated that the interim payments at issue here flow from the “district court’s pa, inherent powers to fashion a remedy,” not from estop- pel (App. A, infra, Sa-9a i REASONS FOR GRANTING THE PETITION This case direct concerns tne most serious adminis- ; ; . : trative problem confronting the Department of Health and Human Services toda n its implementation of tne ’ "fT ? ’ . oclal Security Av how to assure accurate, falr, 11? lf ry y | fficiant rryiy ? ) tf rntit YY rit Inliorm ant CLlLiCie cele {) QO] © € lLIe (a T 1j ahilit. } ’ 54 , Pr ry y { w IsaDlil y CMeLILS YU t “©¢\VClada bLldiLiv) ii a sais ; ts ‘ ] f . | ‘7+ .*% > " " " who apply for benefits or whose continuing ellgibilitv is reviewed eacn year and the nundreds of thousands of an Administrative Law Judge. The disability hearing ‘ + ‘ »} ‘ ** " "yy te tt, . ‘ le» le * SVstem Nas Deen CNaracterized as “provdabdlyv tne largest ‘ sf , "0 > % } + _ % > toy " . i ‘ 1¢ " + adjudicative agency in the western world,.”!! and it is to the Secretary of Health and Human Services. not to the + i centadelt cual rUSLe| | courts, that Congress has en s stewardship on a nationwide basis. 42 U.S.C. (& Supp. IV) 405(b). The ling of the court of appeals is another in a line of deci- sions that have sanctioned an unwarranted and increas- ingly burdensome judicial intrusion into the ALJ hear- ing process through that Congress itself has declined to impose. + rv Paar vr er aie say ; rhe necessary effect of these decisions will be to re- quire the secretary to divert scarce resources to the *} r alai + " + | . ry? hi ; detriment of claimants in other geographic areas and in programs that are not yet subject to judicial decrees. [wo other courts of appeals have rejected this ap- i 12 proach, recognizing that the courts must defer to the Secretary in giving effect to the statutory requirement of “reasonable notice and opportunity for a hearing.” Moreover, in the instant case, the court of appeals has for the first time extended the principle of judicially fashioned processing deadlines to the reconsideration stage, which is primarily the responsibility of the States, not the federal government. The court of appeals also erred in ordering the pay- ment of interim benefits when its judicially imposed deadlines are not met. This aspect of the decision is in- consistent with statutory provisicns directing that funds may be paid out of the Trust Fund only if the re- cipient has been found eligible for benefits and with this Court’s holding in Schweiker v. Hansen, 450 U.S. 785 (1981), that such statutory prerequisites to the dis- bursement of public funds must be honored by the courts. Review plainly is warranted to resolve these important and recurring questions. 1. a. Four courts of appeals have addressed the is- sue of the timing of ALJ disability hearings in the last several years, with four different results. The Second Circuit, in the instant case and in three preceding cases, held that the hearing times involved were unrea- sonable, imposed deadlines on the hearing process, and ordered the payment of interim benefits when those deadlines are not met.!* The First Circuit, in Caswell v. Califano, supra, concurred in the appropriateness of judicially imposed time limits (583 F.2d at 15-18), but 12 White v. Mathews, supra, 559 F.2d at 858-860; Barnett v. Califano, supra, 580 F.2d at 31-33; Sharpe v. Harris, supra, 621 F.2d at 531. See also Martinez v. Califano, Civ. No. 73-C-900 (E.D.N.Y. Jan. 3, 1978). 13 did not order the payment of interim benefits. 12 The Sixth Circuit also held that the hearing delays were statutorily unreasonable. Blankenship vy. Secre- tary of HEW, 587 F.2d 329, 333-334 (1978). However, the Sixth Circuit reversed the district court’s order providing for judicially imposed deadlines, principally for three reasons: Congress had declined to impose fixed time limits; such an order in one State would re- quire the shifting of resources from other States: and “{slimplistic and unrezsonably short time limitations imposed from the outside without a thorough under- standing of the reasons for the problem will frustrate welfare administration, just as it would frustrate judi- cial administration.” Jd. at 335. Instead, the Sixth Cir- cuit ordered the Secretary to exercise his rulemaking authority under 42 U.S.C. 405(a) to formulate regula- tions giving substance to the statutory requirement of “reasonable notice and opportunity for a hearing.”!4 1S However, a district court decision ordering the payment of interim benefits if judicially imposed time limits are not met is currently pending before the First Circuit on the Secretary's appeal. Crosby v. Social Security Administration, No. 81-675-T (D. Mass. Nov. 16, 1982), appeal pending, No. &3-1077, # On remand in Blankenship, the Secretary attempted to de- velop acceptable regulations and submitted various regulatory proposals to the district court. In the end, however, the Secre- tary concluded that burgeoning and unpredictable caseloads made any commitment to fixed timc limitations in regulations unworkable. The Secretary therefore moved for relief from the regulations requirement in favor of 4 commitment to establish processing goals. The district court denied the Secretary's mo- tion, ordered him to publish regulations requiring a hearing de- cision within 180 days of request, and required the payment of interim benefits when the time limits are not satisfied. In a com- panion case decided the same day, Finch v. Schweiker, No. Civ. Nos. C 75-0185 L(A), C 76-0441 L(A) (W.D. Ky. Feb. 17, 1952), the district court imposed time limits on yet another stage of the administrative process—decisions by the Appeals Council. Blankenship v. Secretary of Health & Human Serv- 14 The Seventh Circuit, in Wright v. Califano, 587 F.2d 345, 354 (1978), on the other hand, concluded that no ju- dicial intervention whatever in the hearing delay prob- lem was warranted. The Seventh Circuit expressly re- fused (ihid.) to follow White, Barnett, and Caswell, the decisions upon which the court below relied in the in- stant case (App. A, infra, 5a-8a).15 In the Seventh Cir- cuit’s view, a court ordinarily is not competent to evalu- ate the efficiency of an administrative agency and to make the essentially legislative judgment whether the agency is performing its work with reasonable dispatch. 587 F.2d at 352-353. The Seventh Circuit observed that Congress had committed the timing of hearings to the discretion of the Social Security Administration and, unlike the court below, found it significant that Con- gress, despite careful monitoring, had failed to pre- scribe mandatory time limits on that process “r to di- rect the payment of interim benefits. Jd. at 553. The Seventh Circuit further explained that since the hear- ing delays complained of were systemwide— The district court found that in this regard Day experienced a 173-day delay and Maurais, a 65-day delay. Neither delay was found by the district court to be out of the normal range. ® The district court excepted delays resulting from the follow- ing circumstances: The claimant offers new medical evidence or reports new medical treatment since his initial determination; b) the claimant agrees to undergo a consultative examina- tion when one is suggested by the defendant; (c) The claimant or his representative causes a delay by failing to provide information needed for reconsider- ation; (d) The claimant or his representative requests a delay; or e) The delay is in some other way attributable to the ag- grieved claimant or his representative. 5a and that with similar exceptions,’ a hearing must be scheduled within 90 days of a request for hearing. Judge Holden then went on to order that interim disa- bi ity payments be made, subject to the exceptions de- scribed above and to recoupment if the claimant is later found to be ineligible for disability payments, whenever no reconsideration determination is issued within 180 days of the request for reconsideration, whenever no hearing is held within 180 days of a prior request for re- consideration that is followed by a hearing request and whenever no hearing is held within 90 days of a request for a hearing. On appeal, the Secretary raises several arguments that are similar to those made in our earlier cases. First, he claims that the case is nonjusticiable because Congress has entrusted the administration of the act to the Department of Health and Human Services. It is true that this argument, strengthened somewhat by the Seventh Circuit’s reading of the decision in Vermont Yankee Nucle r Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), won the day for the Secretary in Wright v. Califano, 587 F.2d 345, 352-54 & 356 (7th Cir. 1978). But see Smith v. Miller, 665 F.2d 172 (7th Cir. 1981). A similar claim also gained him a partial victory in Blankenship v. Sec- retary of HEW, 587 F.2d 329, 335 ‘6th Cir. 1978). We, 7 The district court excepted delays resulting from the follow- ing circumstances: (a) The claimant or his representative causes a delay by failing to provide information needed for adjudication; (b) The claimant or his representative requests a delay; (c) The claimant or his representative fails to appear for the scheduled hearing; (d) The delay is in some other way attributable to the claimant or his representative. | . +1 . ‘ ‘ 4 [ r , ‘ ‘ yeve . agres ‘ I ] v4 nue { mere ] ‘ ‘ ] t ‘ . ] + - —" | , > | , ‘ . _ ‘ . ¢ 4 } r remecd§y\ y ‘= ‘ . ec ' era nrocr ry. \ 4 a, lOe- A, (hb mt / , ‘ . - moar ) ¢ ) va i ye ? 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Way a riInpDuLaDdDie LO . ‘ ‘ ‘ a +r Ye ;aImant * Wt “~¥\r* weer . ne Cilalmant Or nis representative. : im 1 af, + } 5 owe ae a ) The time period aforementioned in paragraph (4 I , + aw 04% + ws 6 } . . . a6 - shall apply to hearing = < made since issuance of Dp the Court's preliminary injunction on eameiies 30, 1980, and shall commence with the date of receipt by defendant of a forma! written request for hearing filed pursuant to 20 C.F.R. § 404.933 or other applicable regulations. In the event that the last day of said time period falls upon a Saturday, Sunday or legal holiday (as defined by Fed. R.Civ.P. Rule 6(a)), the enum- era ted period shall run until the end of the next day which is not a Saturday, Sunday or legal holday. (6) The defendant is enjoined, ordered and directed to grant prospective interim Title II disability insur- ance payments to Title II disability claimants in any of the following circumstances: A. No reconsideration determination is issued within 180 days of the request for reconsideration. Said payments shall begin with the first month af- ter the month in which the 180 day time limit is ex- ceeded and shall end with the conclusion of the month in which the reconsideration determination is mailed. Said time period shall apply to the recon- sideration requests made on or after the effective date of this Order and shall commence with the date of receipt by defendant of a formal written re- quest for reconsideration filed pursuant to 20 C.F.R. § 404.909 or other applicable regulations. 398 B. No hearing is held within 180 days of a prior re- quest for reconsideration that is followed by a hearing request. The passage of time between the issuance of the written decision of reconsideration and the date of receipt of the written hearing re- quest shall be excluded from this time period. The interim payments shall begin with the first month after the month in which the 180 day time limit is exceeded and shall end with the conclusion of the month in which the hearing before the administra- tive law judge is held. Said time period shall apply to reconsideration requests made on or after the ef- fective date of this Order and shall commence with the date of receipt by defendant of a formal written request for reconsideration filed pursuant to 20 C.F.R. § 404.909 or other applicable regulations. C. No nearing is held within 90 days of a request for hearing. Said payments shall begin with the first month after the month in which the 90 day time period is exceeded and shall end with the con- clusion of the month in which the hearing before an administrative law judge is held. Nothing in this order shall be construed to require the payment of retroactive Title II disability insurance ben- efits based upon the alleged date of disability onset. Nothing in this order shall be construed to limit the de- fendant’s right to recover payments made under this paragraph, pursuant to standard overpayment proced- ures, if it is finally determined that the individual so paid is not under a disability for any period in which the payments are made pursuant to this paragraph. (7) Benefits pa'd pursuant to this order shall be sus- pended if the claimant refuses to cooperate in attending a scheduled hearing or in going to a consultative exami- nation or in obtaining any other necessary evidence. (8) Beginning with each applicable administrative ap- pellate request received on the 61st day after the entry of this order and continuing thereafter, the defendant is directed to notify in writing each claimant who requests 36a a reconsideration or an administrative law judge hear- ing of his or her rights under the order by including a brief statement of the rights accorded hereunder. Said written notice may be given to the claimant personally or may be included in any mailing to the claimant re- garding his appellate request but shall not require a separate special mailing by the Social Security office. The plaintiff and defendant will provide this Court with an agreed upon statement of notice. (9) This order shall become effective on the sixty-first day following its entry except as otherwise provided in paragraphs 5 and 6 supra. (10) This order shall not apply to claims for con- current henefits under Title II and Title XVI, which are included in Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978), but shall apply to disability claims under Ti- tle II only. (11) This decree shall be binding upon the Secretary of Health and Human Services when adjudicating administrative reconsiderations and hearings within the State of Vermont. (12) Within sixty (60) days from the date of this Or- der, the defendant shall submit to the Court and to the plaintiffs’ attorneys a detailed statement or plan for im- plementing the relief required herein on a continued ba- sis, and the actual administrative steps taken to effec- tuate said plan. Any disputes between the parties as to whether the procedure and steps outlined by the de- fendant will fulfill the requirements of this Order shall be resolved by the Court. (13) This Court shall retain continuing jurisdiction over this cause to insure compliance with the provisions of this Order for a period of no less than one year from the date hereof. Dated at Rutland, in the District of Vermont, effec- tive this 30th day of October, 1981 and entered Novem- ber 6, 1981. 37a s/ JAMES 3. HOLDEN : HONORABLE JAMES S. HOLDEN Chief Judge U.S. District Court for the District of Vermont --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0474%3A01. Public record. Not legal advice.